Top 4 Things Employers Should Know About Existing Time Off and Paid Family 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 EFMLA requirements under the Act with pre-existing paid leave that the employer is already offering to its employees. This assumes that the employer’s regular paid time off policy allows such time to be used for the employee to stay home to care for a son or daughter due to a school or day care closure. While the Department of Labor continues to issue new guidance on the subject, here are the top four things that employers need to know:
The first two weeks of EFMLA are unpaid but the employer can require the employee to use EPSL to get paid during that time, if no other paid leave time is available. If the employee is eligible for other paid leave time that can be used, then the employee can choose whether to use regular paid leave time or EPSL to get paid during the first two weeks of EFMLA.
If the employer and the employee agree, the employee can use both EPSL and regular paid time off during the first two weeks of EFMLA to supplement the employee’s pay to raise it from 2/3 of the employee’s regular rate to 100% of the employee’s regular pay. For example, an employee taking 10 days of EPSL to be paid during the first two weeks of EFMLA is paid at 2/3 the employee’s normal pay. The employer and employee could agree to supplement the employee’s pay for those 10 days to receive 100% of their normal pay, by the employee using 3 1/3 days of paid time off (10 days using 1/3 of a day of paid time off).
Employers can require employees to use regular paid time off and EFMLA at the same time, but the employer must pay the employee for both. An employer might do this in an attempt to minimize the total time that an employee may be out of the office on leave. For example, if an employee has 10 days of EPSL, 3 weeks of paid time off and needs to take the entire 12 weeks of leave under EFMLA and is taking all leave concurrently, then, the employee will be paid as follows: a) weeks one and two—the employee uses 10 days of EPSL at 2/3 their regular rate and uses 3 1/3 days of paid time off to be paid at 100% of their regular rate (the first 2 weeks of EFMLA is unpaid) ; 2) weeks three and four and one and 2/3 days in week five– the employee uses the remainder of regular time off and is paid at 100% of their regular rate and the employee uses their first few weeks of EFMLA and is paid at 2/3 their regular rate (the employee receives pay for both regular time off and EFMLA); and 3) the remainder of week 5 through week twelve – the employee uses the remainder of their EFMLA and is paid at 2/3 their regular rate.
The EFMLA is not in addition to regular FMLA time that the employee may be eligible for. If the employee has already used all of their allotted FMLA time for 2020, the no additional leave will be available under EFMLA.