DOL Says Employers May Require Employees Use Available Paid Leave During Expanded FMLA Leave!

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April 15, 2020

Last Friday, the DOL issued “corrections” to its FFCRA regulations. A link to these corrections is here:  FFCRA Corrections. Among other small changes, the DOL has made it crystal clear that an employer may require an employee use accrued paid leave for the paid portions of Expanded FMLA leave.  This does not apply during the first two weeks if the employee is utilizing paid leave under the Emergency Paid Sick Leave provision of the FFCRA. (For you nerds like me, this means section 826.70(f) of the regulations you printed should be crossed out.)

For example …

Your full-time employee, Bob, needs leave to take care of his son whose school is closed due to COVID-19.  Bob has all of his Expanded FMLA leave available (12 weeks), has his full 80 hours of Emergency Paid Sick leave available, and has 40 hours of accrued PTO.

For the first 2 weeks, Bob can use his 80 hours of Emergency Paid Sick Leave (you pay him 2/3 of his pay, up to $200 daily and $2,000 total).  You cannot require him to use PTO during this time. Of course, you can allow him to supplement the 2/3 pay with PTO so he has full pay during these weeks if he wants to do so.

Starting with week 3, you can require Bob to use his entire 40 hours of PTO. This counts as paid leave under the Expanded FMLA, and you can take 2/3 of that pay as a tax credit (subject to the $200 daily and aggregate caps).

Weeks 4-12 will be paid at 2/3 Bob’s regular rate of pay, subject to the caps above.

Remember, you can only require the employee use accrued paid leave concurrent with the last 10 weeks of Expanded FMLA, if the employer’s policy for that paid leave would allow taking time off  for the child care/school closure reason.  Most Paid Time Office (PTO) policies are broadly written, but an employer with a Sick Time policy that only applies in the case of illness of the employee or immediate family would not be permitted to apply it during the Expanded FMLA period.    Are we having fun yet?

Ruder Ware’s COVID-19 Focus Team is doing all we can to keep you up-to-date as this situation evolves, please contact us with questions.

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