Businesses may be responsible for providing FFCRA benefits, including Emergency Sick Paid Leave and/or Paid Family Medical leave to seasonal employees.  An employer is not required to provide FFCRA leave to a seasonal employee who is not scheduled to work (e.g., because it is off-season).  However, the Department of Labor has confirmed that regardless of how an employer classifies or counts its workers, an employer must provide FFCRA leave to workers who are its “employees” for purposes of the Act.  Employers must include all employees on the payroll, even if an employer provides or refers such employees to other employers.  Therefore, seasonal employees who otherwise meet the eligibility requirements and leave criteria must be provided benefits under the FFCRA by eligible employers.

There is a lot to unbundle in that last statement.  Let’s begin with employer eligibility.  Employers with fewer than 500 employees are eligible to provide FFCRA benefits. (Please note, Philadelphia has enacted its own legislation so as to require employers with more than 500 employees to provide similar paid leave benefits.  This legislation extends beyond the FFCRA and utilizes alternate criteria.  Please contact our Employment Law Group with questions specific to that statute.)  At this time of year, employers may witness either an increase or decrease in their employment base, in accordance with the season, such that eligibility may shift.  Some businesses may employ less than 500 employees for the majority of the year and experience a dramatic increase to over 500 employees resulting in a shift to ineligibility for FFCRA.  The converse may also be true for those over 500 that reduce to less than 500 due to seasonal lay-off.  Eligibility for a business, for purposes of the application of the FFCRA, is tied directly to the number of employees on the payroll at the time the request for FFCRA benefits is tendered.  Businesses, therefore need to monitor the ebb and flow of employees on the payroll to determine if they are even responsible for providing FFCRA benefits. 

Eligible employers do not need to pay FFCRA benefits for seasonal employees that are currently off work.  However, once an employee returns and meets the basic requirements, they do become eligible to receive FFCRA benefits.  The next step in our evaluation process turns to whether the seasonal employee is eligible to receive FFCRA benefits.  Eligible employees must be employed and on the payroll for at least 30 calendar days immediately prior to the day the leave would begin.  For example, if an employee needs to take leave on April 1, 2020, he/she would need to have been on the employer’s payroll as of March 2, 2020.  In addition, if the employee has been working for a company as a temporary employee, and the company subsequently hires him/her on a full-time basis, the employer would count any days the employee previously worked as a temporary employee toward this 30-day eligibility period.

If both the employee and business are eligible under the FFCRA, then the employer must determine if the reason for leave meets the requisite criteria for leave under the FFCRA.  These are the same six criteria utilized for assessment of full or part time personnel under the FFCRA:

• Advice by Health Care Provider to Self-Quarantine
• Experiencing Symptoms and Seeking Medical Diagnosis
• Employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
• Caring for Family Member
• Caring For Son or Daughter  
• “Substantially Similar Condition.” 

Once the employer has determined that the employee is both eligible and has met the necessary criteria for requested leave, they must determine the appropriate rate of pay.  Employers may calculate the daily amount they must pay a seasonal employee with an irregular schedule by taking the following steps:

• First, employers should calculate how many hours of leave the seasonal employee is entitled to take each day.  Because the employee works an irregular schedule, this is equal to the average number of hours each day that he or she was scheduled to work over the period of employment, up to the last six months.  Please note that employers should exclude from this calculation off-season periods during which the employee did not work.
• Second, employers should calculate the seasonal employee’s regular hourly rate of pay.  This is calculated by adding up all wages paid over the period of employment, up to the last six months, and then dividing that sum by the number of hours actually worked over the same period.  Again, employers should exclude off-season periods during which the employee did not work.
• Third, employers must multiply the daily hours of leave (first calculation) by the employee’s regular hourly rate of pay (second calculation) to compute the base daily paid leave amount.
• Fourth, employers should determine the actual daily paid leave amount, which depends on the type of paid leave taken and the reason for such paid leave.

The Department of Labor has affirmed that an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is based on his/her inability to work.  Again, by way of example, if the employee is a seasonal employee on furlough they are not eligible.  The Act, however, does not permit an employer to avoid granting FFCRA leave by purporting to lack work for an employee.  The work-availability requirement for FFCRA leave should be understood in the context of the applicable anti-retaliation provisions, which prohibit employers from discharging, disciplining, or discriminating against employees for taking such leave.

Finally, businesses should remember that the FFCRA is currently set to expire on December 31, 2020.  We will continue to monitor the work in Congress for release of updates or extensions to the FFCRA and/or the Cares Package.  For now, businesses that utilize seasonal employees should monitor their eligibility status and document their evaluation and leave requests.

 As always, should you have questions please do not hesitate to contact our Employment Law Group at 1-888-488-2638.