The Department of Labor is catching up to the flurry of emergency legislation that has come out of Washington and has issued additional guidance on expanded family medical leave requirements created by the Families First Coronavirus Response Act (“FFRCA”).  In an effort to clarify some of the confusion surrounding this emergency legislation, we have provided answers to some of the common questions.

• The first two weeks of the emergency expanded FMLA leave are unpaid, but employees may use any available emergency paid sick leave (“EPSLA”) or other preexisting PTO.

• The employee may not simultaneously take emergency paid sick leave provided under EPSLA and preexisting paid leave under the employer’s policy, unless the employer agrees to allow the employee to use pre-existing PTO to supplement the amount available under the EPSLA up to the employee’s normal earnings.  Paid sick leave taken to care for an individual subject to quarantine or care for a child under 18 whose school or child care provider is unavailable due to COVID-19 is paid at 2/3 of the employees regular wages, up to $200/day.

• After the first two weeks, employees may choose, or employers may require, that employees take the remaining expanded paid family and medical leave at the same time as any existing leave that under the employer’s policies would be available to the employee in that circumstance.  If the employer requires an employee to take existing leave concurrently with the employee’s remaining expanded family and medical leave, then once the employer provided paid leave is exhausted, the employer must pay the employee 2/3 of their regular rate of pay for the remaining leave period, up to $200/day.

• To the extent that an employee utilizes existing PTO during expanded family medical leave, those wages are not eligible for IRS tax credits.

• The up to 80 hours of paid sick leave under EPSLA is in addition to any existing paid leave and an employer may not require an employee to exhaust other available PTO before using EPSLA.

• FFRCA does not create an additional twelve weeks of medical leave.  Employees are entitled to take a total of twelve weeks of FMLA in a twelve month period to include any time taken under the expanded paid FMLA.  As an example, if an employee has already taken six weeks of FMLA leave for a serious health condition or other qualifying event during the applicable twelve month period, the employee is only entitled to take six weeks of paid FMLA leave before exhausting all time available under the FMLA.  Employees do not start over on April 1 with a new twelve week bank of leave.

• The expanded FMLA only covers the need for an employee to provide childcare for the employee’s own son or daughter under the age of 18 who is home due to a school or childcare closure because of COVID-19.  Son or daughter is defined under FMLA to include the employee’s biological, adopted or foster child, a stepchild, a legal ward or a child for whom the employee is standing in loco parentis – someone with day to day responsibilities to care for or financially support a child.  Son or daughter also includes an adult son or daughter who is 18 years of age or older who is disabled and incapable of self-care because of that disability.  Please note that it is possible for an employee to qualify for unpaid FMLA leave.  Two such examples are if an employee contracts COVID-19 and the employee’s condition rises to the level of a serious health concern or the employee has a serious health condition that renders the employee unable to work because of the COVID-19 pandemic.  In such situations, an employer can require an employee to obtain a completed medical certification to support the FMLA leave.

• Both parents are not eligible to take childcare leave simultaneously.  Although this may be difficult to enforce, the new regulations provide that the availability of childcare leave is based on actual need to care for their child / children.  Generally, an employee does not need to take such a leave if a co-parent, co-guardian or the employee’s usual childcare provider is available to provide the care the employee’s child needs.  The employer is entitled to require that the employee provide (1) the name of the child / children being cared for; (2) the name of the school, place of care, or childcare provider that became unavailable due to COVID-19 related reasons; and, importantly, (3) a statement representing that no other suitable person is available to care for the child/children during the period of requested leave.

• In determining whether an employer is obligated to provide expanded FMLA, the Department of Labor looks at the number of employees that are employed at the time that the leave is requested.  This means that if you usually have over 500 employees and were not initially required to provide leave under the FFCRA but have furloughed employees, you may be required to provide expanded leave.

• If a business has closed either due to lack of business or as a result of a stay at home order, and as a result there is no work available, the employer is not required to provide emergency paid sick leave or expanded FMLA leave.  However, if employees are continuing to work from home, they are eligible for leave.

If you have any additional questions about expanded FMLA, paid sick leave or other issues please contact Peter Bennett (pbennett@charlesc48.sg-host.com) or Rick Finberg (rfinberg@charlesc48.sg-host.com).