By: Jessica Jackler
Since the Families First Coronavirus Response Act (FFCRA) was enacted on April 1, it feels as though the DOL has updated its guidance on an almost daily basis. What started out as a couple dozen or so questions and answers explaining the hastily drafted Act, has now increased to 89 for the time being. This article focuses on two newer issues the DOL has addressed:
- whether leave under the Emergency Family and Medical Leave Expansion Act is available to employees even if they have teleworked since the FFCRA went into effect; and
- whether employer-provided paid leave may be used concurrently with leave under the FFCRA.
As to the first issue, the DOL has stated that if you have employees with children at home, who have been teleworking for the past month or so, but now are requesting family leave under the FFCRA, the fact that they were previously able to telework does not undermine their ability to later request the leave. Circumstances change, the DOL explains, and for some parents, there are many reasons why they now need the leave as opposed to when the pandemic first interrupted our lives. Perhaps their partner at home has a different schedule or obligations now, or the employee can no longer provide effective care for children at home.
Next, the DOL’s updated guidance also provides additional clarity about whether employers may permit, or even require, employees to use employer-provided paid leave concurrently with leave under the FFCRA. The answers depend on which leave under the FFCRA applies.
First, paid sick leave under the Emergency Paid Sick Leave Act is in addition to any form of paid or unpaid leave provided by an employer, law or an applicable collective bargaining agreement. An employer may not require employer-provided paid leave to run concurrently with paid sick leave under the Emergency Paid Sick Leave Act.
In contrast, an employer may require that any paid leave available to an employee under the employer’s policies to allow an employee to care for his or her child due to a COVID-19 related reason must run concurrently with paid expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.
In this situation, the employer must pay the employee’s full pay during the leave until the employee has exhausted available paid leave under the employer’s plan—including vacation and/or personal leave (typically not sick or medical leave). However, the employer may only obtain tax credits for wages paid at 2/3 of the employee’s regular rate of pay, up to the daily and aggregate limits in the Emergency Family and Medical Leave Expansion Act ($200 per day or $10,000 in total).
If the employee exhausts available paid leave under the employer’s plan, but has more paid expanded and medical family leave available, the employee will receive any remaining paid expanded and medical family in the amounts and subject to the daily and aggregate limits in the Emergency Family and Medical Leave Expansion Act. Additionally, if both an employer and employee agree–and subject to federal or state law–paid leave provided by an employer may supplement 2/3 pay under the Emergency Family and Medical Leave Expansion Act so that the employee may receive the full amount of the employee’s normal compensation.
Secondly, an employee may elect—but may not be required by the employer—to take paid sick leave under the Emergency Paid Sick Leave Act or paid leave under the employer’s plan for the first two weeks of unpaid expanded family and medical leave, but not both. If, however, an employee has used some or all paid sick leave under the Emergency Paid Sick Leave Act, any remaining portion of that employee’s first two weeks of expanded family and medical leave may be unpaid.
During this period of unpaid leave under the Emergency Family and Medical Leave Expansion Act, the employee may choose—but may not require the employee—to use available paid leave under the employer’s policies for an employee to care for their child due to a COVID-19 related reason concurrently with the unpaid leave.
Practice Tip: The interpretations of the FFCRA continue to evolve and present complicated issues that must be assessed on a case-by-case basis. We encourage employers to consult the DOL’s updated guidance as issues are presented and contact us if there are unresolved questions to avoid noncompliance and potential claims.