Does Emergency Family and Medical Leave Expansion Act EFMLEA Apply to Full Time or Part Time Employees
The EPSLA requires employers to provide paid sick leave to employees who are unable to work for six reasons having to do with COVID-19.
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The EPSLA does not define what it means to be a “full-time” or “part-time” employee. Because paid sick leave is designed to provide leave “over a 2-week period,” and the EPSLA provides up to 80 hours of such leave to full-time employees, the Department believes a full-time employee is an employee who works at least 80 hours over two workweeks, or at least 40 hours each workweek. As a result, the Department defines a full-time employee as an employee who is normally scheduled to work at least 40 hours each workweek in § 826.21(a)(2).
Further, § 826.21(a)(3) provides that an employee who does not have a normal weekly schedule may also be a full-time employee if he or she is scheduled to work, on average, at least 40 hours each workweek. For consistency purposes, this weekly average should be computed over the same six-month period as the “Varying Schedule Hours Calculation” for certain part-time employees under section 5110(5)(C)(i) of the FFCRA.
Thus, § 826.21(a)(3) provides that the average hours per workweek for an employee who does not have a normal weekly schedule should be calculated over the six-months prior to the date on which leave is requested to determine if he or she is a full-time employee. If the employee has been employed for less than six months, the average hours per workweek is computed over the entire period of employment.
Under § 826.21(b), a part-time employee is an employee who is normally scheduled to work fewer than 40 hours each workweek or—if the employee lacks a normal weekly schedule—who is scheduled to work, on average, fewer than 40 hours each workweek.
Under § 826.21(b)(1), a part-time employee who works a normal schedule is entitled to paid sick leave equal to the number of hours he or she is normally scheduled to work over a two-workweek period.
As discussed above, the Department believes that a part-time employee whose weekly work schedule varies should be entitled to paid sick leave equal to fourteen times the average number of hours that the employee was scheduled to work per calendar day over the six-month period ending on the date on which the employee takes paid sick leave, including hours for which the employee took leave of any type. This computation is possible only if the employee has been employed for at least six months. Thus, § 826.21(b)(2) provides variable-schedule part-time employees with such an amount of paid sick leave.
Section 5110(5)(C)(ii) of the EPSLA further provides that, if a part-time employee with a varying weekly schedule has been employed for fewer than six months, “the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work” should be used “in place of” the average number of hours worked “over a 2-week period” under section 5102(b)(2)(B) to determine the amount of paid sick leave to which an employee is entitled.
Again, the Department does not believe that in the EPSLA Congress intended for “the reasonable expectation . . . of the average number of hours per day” to be used “in place of” the average number of hours worked “over a 2-week period.” Rather, Congress intended to use the expected daily average number of hours to estimate the two-week average. The Department further believes such “reasonable expectation” is best evidenced by an agreement between the employer and employee at the time of hiring.
Thus, § 826.21(b)(3) states that a part-time employee with a varying schedule who has been employed for fewer than six months is entitled to fourteen times the expected number of hours the employee and employer agreed at the time of hiring that the employee would work, on average, each calendar day. This is equal to twice the average number of hours that the employee would be expected to work each workweek.
The agreement could have used any time period—e.g., each workweek, month, or year—to express the average number of hours the employee was expected to work, so long as that daily average could be extrapolated. In the absence of such an agreement, the Department believes that the actual average number of hours the employee was scheduled to work each workday demonstrates “the reasonable expectation . . . of the average number of hours per day that the employee would normally be scheduled to work.” FFCRA section 5110(5)(C)(ii).
Accordingly, § 826.21(b)(3) further states that, in the absence of an agreement regarding the expected number of hours worked each day, a part-time employee with a varying schedule who has been employed for fewer than six months “is entitled to up to the number of hours of paid sick leave equal 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 hours for which the employee took leave of any type.” An employer may also use twice the number of hours that an employee was scheduled to work per workweek, on average, over the six-month period.