The U.S. Department of Labor (DOL) issued its most recent guidance on the Families First Coronavirus Response Act (FFCRA). The DOL is working hard to address employers’ lingering questions about the law’s requirements, including how to calculate an eligible employee’s hours of leave and their average regular rate for both emergency paid sick leave and expanded family and medical leave for COVID-19-related reasons. Grab your calculators and let’s dig in!
Emergency Paid Sick Leave Hours
Calculating leave hours for employees with regular schedules is straightforward. The FFCRA provides eligible full-time employees with 80 hours of emergency paid sick leave, and employees are considered full time if they’re scheduled to work at least 40 hours per week. Part-time employees with regular schedules are entitled to the number of hours equal to the hours they are normally scheduled to work over two workweeks.
Calculations get a little more complicated for employees with varying schedules.
If an employee has an irregular schedule but averages 40 hours or more per week over the six-month period prior to taking leave, then the employee is considered full time and may take up to 80 hours of paid sick leave.
A part-time employee with an irregular schedule may take up to the number of hours equal to fourteen times the average number of hours that the employee was scheduled to work each calendar day over the six-month period ending on the date on which the employee takes leave, including any hours in which the employee took leave of any type. This is where the calculator comes in handy.
For example, if an employee takes leave on April 13, 2020, the six-month period for estimating hours is October 14, 2019, to April 13, 2020, which consists of 183 calendar days. In that time, the employee worked 550 hours over 100 workdays and took 100 hours of personal and medical leave, which means the employee has 650 total hours. Next, divide 650 hours (the total hours) by 183 calendar days, which equals 3.55 hours per calendar day (650/183 = 3.55). Then, multiply 3.55 hours by 14 (the number of calendar days in two weeks) to obtain the two-week average of 49.7 hours (3.55 x 14 = 49.7).
If an employee has a varying schedule and has worked less than six months, the employee is entitled to a number of hours equal to fourteen times the number of hours the employee and employer agreed the employee would work, on average, each calendar day. If there was no agreement, the employee is entitled to fourteen times the average number of hours per calendar day that the employee was scheduled to work over the entire period of employment, including any hours in which the employee took leave of any type.
Expanded Family and Medical Leave Hours
Under the FFCRA’s expanded family and medical leave, after the first ten days of leave, employers must pay employees two-thirds of their average regular rate for their scheduled number of hours for each day leave is taken, subject to the statutory cap of $200 per day and $10,000 total.
If an employee has a normal work schedule, then the employee is entitled to the hours they’re normally scheduled to work on that day.
If an employee’s schedule varies, the employee is entitled to the average number of hours they were scheduled to work each workday (not calendar day) over the six-month period ending on the date the employee takes leave, including any hours in which the employee took leave of any type.
Using the same example above of an employee working 550 hours over 100 workdays and taking 100 hours of personal and medical leave within the six-month period, the number of hours per workday is calculated by dividing 650 by the 100 workdays, which is 6.5 hours per workday. That employee would be entitled to 6.5 hours pay for each day of expanded leave taken at two-thirds of their average regular rate, subject to the cap.
Note that an employee’s average hours per workday may exceed eight hours per day. If, after doing the above calculation, an employee averages 9.2 hours per workday, the employer must pay the employee 9.2 hours for each day of leave times two-thirds of the employee’s average regular rate, but it’s still subject to the cap of $200 per day and $10,000 total.
Average Regular Rate
For both emergency paid sick leave and expanded family and medical leave, the FFCRA requires pay based on the employees’ “average regular rate.” The average regular rate is calculated over all full workweeks during the six-month period ending on the first day leave is taken.
If, over the six-month period, an employee is paid exclusively through fixed hourly wage or salary, the average regular rate would equal the hourly wage or hourly equivalent of their salary.
But, if an employee is paid through different arrangements, such as piece rate, commissions or tips, the regular rate may fluctuate from week to week. In that case, for each full workweek in the six-month period, employers will calculate all remuneration not excluded from the regular rate under the Fair Labor Standards Act. Then, employers will compute the number of hours worked for each full workweek. (Note: This does not count hours when the employee took leave.) Finally, divide the total pay over the six-month period by all hours worked. The result is the average regular rate.
For example, if 26 full workweeks are in the six-month period, and an employee worked 1,150 total hours over those weeks and received $23,000 in non-excludable remuneration, then the average regular rate is $20.00 ($23,000 divided by 1,150 hours).
Due to the complicated nature of calculating regular rates, employers should consult with legal counsel to ensure they are accurately calculating the amount of paid leave due under the FFCRA.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
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