As most employers know by now, the Families First Coronavirus Response Act (“FFCRA”) has two main components:  the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA” or “FMLA+”).  The United States Department of Labor (“USDOL”) has recently provided additional guidance on how an employer’s leave policies interact with each of these laws.  As a cautionary note, the USDOL’s guidance has already been the subject of debate, so we may see future clarification.  However, a summary of the current guidance follows.

As a reminder, FMLA+ can only be taken when an employee needs to stay home to care for a child due to the child’s school or daycare being closed for COVID-related reasons.  In that situation, here is a helpful example of how the FMLA+ works and interacts with the EPSLA for qualifying absences:

Weeks 1 and 2:  the FMLA+ leave is unpaid.  However, an employee may choose to use EPSLA for these two weeks (or other paid leave).  An employer cannot require the employee to use EPSLA, or require the employee to use EPSLA before using any other paid leave.  If the employee elects to use EPSLA at 2/3 pay, the employee also may elect to supplement his or her pay with accrued leave in order to receive 100% pay for those 10 days.

Weeks 3 through 12:  FMLA+ leave is paid at 2/3 pay (up to $200 per day, and $10,000 in total).

Under the USDOL’s prior guidance and regulations, it was not clear if an employer could require an employee to use accrued leave during this 10-week period.  In its recently issued guidance, the USDOL clarified that an employer can require employees to use accrued paid leave under the employer’s policies to cover absences under the FMLA+.  If the employer chooses this option, here is how it works:

  • The employee would be required to use any employer-provided accrued leave concurrently with the FMLA+.
  • The employer must be sure to follow its own leave policies.  For example, if an employer normally would not allow an employee to use sick leave to stay at home with a child because of a school or day care closure, then the employer could not require the employee to use sick leave in this circumstance.  In most situations, employees would be using vacation or personal days.
  • The employee would use a full day of accrued leave for each day during the FMLA+ leave, thereby receiving 100% of the employee’s pay for those days.  Each day would count toward the ten weeks of FMLA+.
  • Employers 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 FMLA+ ($200 per day or $10,000 in total).

The practical effect of the foregoing is that an employer would be requiring employees to use up their accrued leave while out on FMLA+, potentially exhausting their leave balances.  Once employees exhaust their accrued leave, then they still will be able to receive 2/3 pay for the remainder of the FMLA+ leave.

Another option that exists is that employers can allow employees to use a portion of their accrued leave to supplement the 2/3 pay under the FMLA+.  Under this option, employees would only be using 1/3 of a day of accrued leave for each day of the paid portion of FMLA+ leave.  However, employers may only use this option if both the employer and the employee agree.  Employers may also need to seek an agreement with any union representing its employees.

Finally, please be aware that the express terms of the FFCRA and its regulations could result in an interpretation that is different from the USDOL’s guidance.  Therefore, employers may want to wait to see if the USDOL issues a clarification before requiring employees to use accrued leave during an FMLA+ absence.  We will continue to keep you updated on the latest developments.

Print:
EmailTweetLikeLinkedIn
Photo of Gabriel Jiran Gabriel Jiran

Gabriel Jiran is Chair of the Firm’s Employer Defense and Labor Relations Practice Group. Gabriel practices labor and employment law on behalf of corporations and public employers. He assists employers in addressing the full spectrum of issues associated with the employment relationship. He…

Gabriel Jiran is Chair of the Firm’s Employer Defense and Labor Relations Practice Group. Gabriel practices labor and employment law on behalf of corporations and public employers. He assists employers in addressing the full spectrum of issues associated with the employment relationship. He negotiates collective bargaining agreements, and frequently represents employers before administrative agencies and courts in labor disputes. Gabriel also litigates employment disputes on behalf of employers.

Photo of Peter J. Murphy Peter J. Murphy

Peter represents public and private sector employers in a broad array of cases, with a focus on cases involving claims of discrimination, wrongful termination, first amendment retaliation, and other labor and employment disputes. In addition, Peter advises employers on issues such as employee…

Peter represents public and private sector employers in a broad array of cases, with a focus on cases involving claims of discrimination, wrongful termination, first amendment retaliation, and other labor and employment disputes. In addition, Peter advises employers on issues such as employee discipline, disability accommodations, and internal investigations, and provides training and seminar presentations on those issues.

Photo of Dori Pagé Antonetti Dori Pagé Antonetti

Dori Antonetti is an associate in the School Law Practice Group. She advises public school districts on a variety of general education, special education, and labor and employment issues.

Prior to joining Shipman & Goodwin, Dori worked as a Hearing Review Officer for…

Dori Antonetti is an associate in the School Law Practice Group. She advises public school districts on a variety of general education, special education, and labor and employment issues.

Prior to joining Shipman & Goodwin, Dori worked as a Hearing Review Officer for the New York City Office of Labor Relations. Dori also clerked for Magistrate Judge John M. Facciola in the United States District Court for the District of Columbia. Before law school, Dori joined Teach for America and worked as a bilingual kindergarten teacher in Spanish Harlem.

Dori is proficient in Spanish.