Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more. This month, we will feature two Consortium Calls of the Month in our newsletter, describing interesting calls and how the issue was resolved. All identifiable details will be changed or omitted.
CONSORTIUM CALL ONE
ISSUE: A Human Resources Director for a private school sent an email to an LCW attorney asking whether certain employees are entitled to Emergency Paid Sick Leave (EPSL) under certain circumstances. The LCW attorney talked through and provided advice to the Human Resources Director regarding those specific circumstances.
RESPONSE:
Employee One: The first employee is the Dean of Students. She is a full time, exempt employee who is responsible for student attendance, safety, and discipline. Due to the transition to remote learning, there is not enough work for her to continue working a full-time schedule. The school has converted her to a non-exempt employee and reduced her scheduled work hours. The Human Resources Director asked whether the Dean of Students is entitled to EPSL because of her reduced work hours. The LCW attorney explained that because the Dean of Students’ reduced work schedule is because of a lack of work, this reason alone does not qualify for EPSL. However, the Dean of Students may qualify for EPSL for other qualifying reasons provided that there is work for her to perform. Also, the Dean of Students may be entitled to unemployment benefits under this circumstance.
Employee Two: The second employee is an English teacher, who is a full-time, exempt employee. The English teacher is working and teaching remotely through the school’s new distance learning program. The English teacher notified the school that he needs intermittent leave one day a week to care for his daughter whose childcare provider is unavailable due to COVID-19, but is able to teach his regular classes on the other days. The Human Resources Director asked whether the English teacher is entitled to EPSL for the days he is unable to telework due to the need to care for his daughter. The LCW attorney explained that the English teacher is likely entitled to EPSL because there is work for him to do, but he is unable to work/ telework because of a qualifying reason for EPSL.
Employee Three: The third employee is a Facilities Manager. She is a full-time, non-exempt employee who has continued to perform work on campus maintaining the cleanliness and safety of the school facilities for those employees facilitating the school’s distance learning program. The Facilities Manager has an underlying medical condition, diabetes, and her doctor has recommended that she remain at home. There is work for her to do on campus, but she is unable to perform this work because of her doctor’s recommendation. She is also unable to work remotely due to the nature of her position. The LCW attorney explained that in this situation, the Facilities Manager is likely entitled to EPSL because she is unable to work/ telework due to a qualifying reason for EPSL.
Employee Four: The fourth employee is the Assistant Director of Admissions. He is a full-time, non-exempt employee. He has an underlying medical condition, severe asthma, and he has been advised by a healthcare provider to stay at home. He is able to complete all of his job duties remotely and work his regular, full-time schedule. The LCW attorney explained that in this situation, the employee is not entitled to EPSL because he is able to telework.
CONSORTIUM CALL TWO
ISSUE: An administrator for an independent school called an LCW attorney and asked how to calculate the regular rate of pay for its full-time, exempt employees for purposes of the Emergency Paid Sick Leave (EPSL) and the Expanded Family and Medical Leave (EFML) leave and pay entitlements under the Families First Coronavirus Response Act (FFCRA).
RESPONSE: The LCW attorney explained that for full-time, exempt employees, the regular rate of pay for EPSL and EFML purposes is calculated by taking the annual salary for the employee, and dividing the annual salary by 52 to obtain the weekly salary amount. Once the weekly salary amount is calculated, that amount is divided by 40 hours to obtain the employee’s hourly wage. For example, if an employee is paid a salary of $60,000 a year, the weekly salary amount is $1153.85. Dividing that weekly salary amount by 40 results in an hourly wage of $28.85. If the employee does not receive any compensation from the school other than his/ her annual salary, the employee’s hourly wage is his/ her regular rate of pay for EPSL and EFML purposes.
Typically, full-time, exempt employees do not receive additional compensation from the school other than their annual salary. However, if the employee receives any additional compensation from the school other than his/her annual salary, the calculation will differ slightly. In this case, the school would take the additional compensation the employee receives and complete a similar calculation as above to determine the weekly value of the additional compensation. The school would then add that amount to the employee’s weekly salary amount from above, and divide the result by the total number of hours worked during the workweek. The resulting amount would be the employee’s regular rate of pay for EPSL and EFML purposes.