On April 10, 2020, the Department of Labor ("DOL") issued corrections to the regulations implementing the Families First Coronavirus Response Act ("FFCRA"). FFCRA provides Emergency Family and Medical Leave (“EFML”) and Emergency Paid Sick Leave (“EPSL”) for eligible employees impacted by the COVID-19 pandemic. You can read more about the requirements of FFCRA here, here, and here.
While most of DOL’s corrections are technical, one of them is significant and clarifies whether employers can require employees to use employer-provided leave (such as vacation, paid time off, or paid sick leave) before or concurrently with EFML.
As discussed here, the regulations were already clear that, with respect to EPSL, an employer may not require an employee to use available paid leave before or during EPSL.
With respect to EFML, however, the regulations contained conflicting provisions. In one section, 29 C.F.R §826.160(c), the regulations stated, “an eligible employee may elect to use, or an employer may require that an employee use, leave the employee has available under the employer's policies to care for a child, such as vacation or personal leave or paid time off, concurrently.” 29 C.F.R §826.160(c) (emphasis added). In another section, however, the DOL contradicted itself by stating, “[b]ecause this period of [EFML] is not unpaid, the FMLA provision for substitution of the Employee’s accrued paid leave is inapplicable, and neither the Eligible Employee nor the Employer may require the substitution of paid leave.” 29 C.F.R. 29 C.F.R §826.70(f).
The DOL has now corrected this inconsistency by deleting 29 C.F.R §826.70(f). With the removal of that provision, there is no longer a question that an employer may require eligible employees to use available paid leave under the employer’s policies concurrently with EFML. An employer still may not require, coerce, or unduly influence an employee to use paid leave before taking EFML.
If EFML is used concurrently with another source of paid leave, then the employer has to pay the employee the full amount to which the employee is entitled under the employer's preexisting paid leave policy for the period of leave taken, even if that amount is greater than $200 per day or $10,000 in the aggregate. But the employer's eligibility for tax credits is still limited to the cap of $200 per day or $10,000 in the aggregate.
We will continue to monitor developments in this area and update you as needed. f you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group.