Top 3 Things Employers Should Know About Existing Time Off and Paid Sick Leave under the Families First Coronavirus Response Act
The Families First Coronavirus Response Act (the “Act”) was signed into law on March 18, 2020. The Act provides certain employees with emergency paid sick leave (“EPSL”) and emergency Family and Medical Leave Act (“EFMLA”) leave beginning April 1, 2020 through December 31, 2020. In addition to the language in the Act itself, the Department of Labor has issued guidance to employers on how to implement the Act in the workplace. One question that has continued to perplex employers is the interplay of the EPSL requirements under the Act with pre-existing paid leave that the employer is already offering to its employees. While the Department of Labor continues to issue new guidance on the subject, here are the top three things that employers need to know:
The emergency paid sick leave under the Act is in addition to any paid time off that the employer already offers. If the employee has already exhausted their employer-provided paid time off prior to needing to take EPSL for one of the six reasons allowed under the Act, the employee is still entitled to take the 10 days of paid leave provided under the Act.
An employer cannot require an employee to use EPSL and paid time off at the same time. However, if an employer and an employee agree, the employer can allow the employee to use paid time off to supplement any short fall in the employee’s pay if the employee is taking EPSL at only 2/3 of the employee’s regular pay. For example, an employee taking 10 days of EPSL under one of the circumstances where the employee is only paid at 2/3 the employee’s normal pay could supplement their pay for those 10 days to receive 100% of their normal pay, if the employer agrees, by the employee taking 3 1/3 days of paid time off (10 days using 1/3 of a day of paid time off).
An employer cannot require an employee to use paid time off prior to using EPSL. If the employee needs to make a day off due to a reason that is covered both by EPSL and the employer’s own paid time off policy, then the employee alone gets to decide whether that day is taken under EPSL or pursuant to regular paid time off. An employer should require that the employee formally request which way leave time is being taken, prior to the leave request being granted.