Yesterday’s DOL update on the FFCRA may be the most important one for employers. And here’s why…

On Friday, the Department of Labor ended its temporary non-enforcement of the Families First Coronavirus Response Act. But, yesterday, it left employers with a little parting gift.

Before I unwrap the present for you, let’s start with a little lesson on the Family and Medical Leave Act of 1993.

You remember the FMLA, don’t you? It’s the Classic, the OG, the federal employment law that pretty much guarantees lawyers like me eternal job security.

Under the FMLA, an eligible employee may take up to 12 weeks of unpaid leave each year for any of the following reasons:

• For the birth and care of the newborn child of an employee;
• For placement with the employee of a child for adoption or foster care;
• To care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition; or
• To take medical leave when the employee is unable to work because of a serious health condition.

Yes, the FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. An employee must follow the employer’s standard leave rules to substitute paid leave.

Ok, now let’s start to unwrap yesterday’s DOL gift.

Until yesterday, you could have polled ten employment lawyers about the interaction of:

• employer-provided PTO (PTO),
• FFCRA Paid Sick Leave (PSL), and
• FFCRA Emergency Family and Medical Leave (FMLA+)

And I’m willing to bet that the answers about when an employer/employee can elect to run one or more of those leaves concurrently (and how much employees get paid for it) would run the gamut.

The FFCRA doesn’t say much about it. The Classic wasn’t much help here. And the DOL’s guidance so far left something to be desired.

So, yesterday, the DOL updated its page of Frequently Asked Questions to explain the circumstances in which an employer may require an employee to use his or her existing leave under a company policy (and when that choice belongs to the employee)

Here’s how it works:

An employer and employee can agree to allow an employee to take PTO and PSL at the same time, but the employer can’t require unilaterally that PTO and PSL run concurrently.

In contrast, an employer may require an employee to use FMLA+ and PTO concurrently during the final ten weeks of FMLA+, as long as an employee may use the type of PTO available to care for his or her child or children because their school or place of care is closed (or child care provider is unavailable) due to a COVID-19 related reason.

When PTO and FMLA+ run concurrently, the employer pays the employee’s full pay during the leave until the employee has exhausted available paid leave under the employer’s plan—including vacation or personal leave (typically not sick or medical leave). So, we’re not talking about using PTO to supplement an employee from 2/3 pay (max of $200/day) under FMLA+ to 100% of his or her regular pay. (Or at least that’s how I read this). This is FMLA+ plus a full PTO day. 

Additionally, the employer and employee may agree, and subject to federal or state law, to top off the 2/3 FMLA+ pay to 100% of the employee’s normal compensation.

If an employer mandates that FMLA+ and PTO run concurrently, 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 FMLA+ limits in the FFCRA ($200 per day or $10,000 in total). If the employee exhausts available PTO, but has more paid expanded and medical family leave available, the employee will receive any remaining paid FMLA+ at the normal daily and aggregate limits.

Finally, an employee may elect—but the employer may not require —to take PSL or PTO for the first two weeks of unpaid FMLA+, but not both.

We already knew that, if an employee has used some or all PSL, any remaining portion of that employee’s first two weeks of FMLA+ may be unpaid. However, during the first two weeks of FMLA+, the employee may choose—but the employer may not require the employee—to use PTO that would be available to the employee to take to care for the employee’s child or children because their school or place of care is closed or the child care provider is unavailable due to a COVID-19 related reason concurrently with the unpaid leave.

What now?

It would have been nice for the DOL to provide some examples of how this works in reality. However, the guidance is the clearest that it has been thus far.

If you have FFCRA leave request forms and policies, update them. And if you don’t have forms, you should.

If you need assistance, consider emailing me or another employment lawyer to learn more about how we can help and pricing.