How do employers calculate the 500-employee threshold?
The 500 employee count is done on the date an employee tries to use the leave. Employers should include employees on leave, temporary employees who are jointly employed by the employer and another employer (regardless of whether they are maintained on the employer’s or another employer’s payroll), and day laborers supplied by a temporary agency (regardless of whether the employer is the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA) are not considered employees for purposes of the 500-employee threshold.
The DOL clarified that employers with several different entities may aggregate employees by using the “integrated employer” test under the FMLA. If that test is satisfied, the employer may aggregate employees of different companies to reach the total number of employees for coverage purposes. Employers may not reach a different result in combining entities under this test than they reached in calculating the 50-employee per establishment threshold for FMLA purposes.
Part-time employees and overtime
The hours provided for the two-week paid sick leave are calculated using the employee’s usual schedule, or if unknown or variable, the average hours per week over a six-month period of time.
For the expanded FMLA for childcare responsibilities, overtime hours are factored into the calculation of 2/3 pay for up to 10 weeks. Overtime is not considered for the two-week paid sick leave if it would result in more than 80 hours of total paid leave over the two week period.
Small employer exemption
In addition, the “small employer” exception only applies to exempt employers with less than 50 employees, where providing the leave would jeopardize the viability of the business as a going concern, from the expanded FMLA provisions–not the paid sick leave provision. All employers must provide the two weeks (up to 80 hours) of paid sick leave for the 6 qualifying reasons.
Intermittent Leave – UPDATED 3/30/20
Intermittent FMLA or sick leave is only available for teleworking employees, with the employer’s consent. The FMLA leave for caregiving may be taken intermittently if the employer agrees. For example, an employer could agree to partial days worked through teleworking and partial days as COVID-19 FMLA, or an employer could agree to 2 of 5 days spent teleworking and 3 of 5 days as COVID-19 FMLA. The same is permitted of the 80 hours of sick pay, provided it is spent teleworking or used for taking care of children whose schools or daycares are closed. If the employee takes sick leave from reporting to the workplace because of illness, caregiving for a sick family member, or quarantine, intermittent leave is not allowed because it would expose other employees to possible COVID-19.
Laid Off Employees – UPDATED 3/30/20
Employees who are laid off or whose workplaces are closed are not eligible for sick pay or COVID-19 FMLA. They must rely on unemployment.
Notice of the need for leave should be provided by employees as soon as practicable.
Leave under the new emergency act may be taken beginning on April 1 (not, April 2, as previously reported).
Additional guidance is coming.
Guidance on the small employer and healthcare exemption will be provided on April 1 .