COVID-19 & Your Business: Frequent Questions

How much pay is an employee entitled to receive for paid family leave under the EFMLEA? (29 CFR § 826.24)

The new regulation states that, after the initial two weeks of EFMLEA, the employer shall pay eligible employees two-thirds of the eligible employee’s average regular rate times the eligible employee’s scheduled number of hours for each day of such leave taken. This amount is capped at $200 per day and $10,000 in the aggregate per eligible employee.

For the purpose of this section, the “scheduled number of hours” is determined as follows:

(1)        If the eligible employee has a normal work schedule, the number of hours the Eligible Employee is normally scheduled to work on that workday;

(2)        If the eligible employee has a work schedule that varies to such an extent that an Employer is unable to determine the number of hours the eligible employee would have worked on the day for which leave is taken and has been employed for at least six months, the average number of hours the eligible employee was scheduled to work each workday, over the six-month period ending on the date on which the eligible employee first takes EFMLEA leave, including hours for which the eligible employee took leave of any type; or

(3)       If the eligible employee has a work schedule that varies to such an extent that an employer is unable to determine the number of hours the eligible employee would have worked on the day for which leave is taken and the eligible employee has been employed for fewer than six months, the average number of hours the eligible employee and the employer agreed at the time of hiring that the eligible employee would work each workday. If there is no such agreement, the scheduled number of hours is equal to the average number of hours per workday that the eligible employee was scheduled to work over the entire period of employment, including hours for which the eligible employee took leave of any type.

As an alternative, the amount of pay for EFMLEA leave may be computed in hourly increments instead a full day. In this case, for each hour of EFMLEA leave taken after the first two weeks, the employer shall pay the eligible employee two-thirds of the eligible employee’s average regular rate.

 

If an eligible employee elects or is required to use leave under the employer’s policies, such as vacation or personal leave or paid time off, concurrently with EFMLEA leave, the employer must pay the eligible employee a full day’s pay for that day.

Last updated April 9

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