The Department of Labor issued temporary regulations on April 1, 2020 for the paid sick leave and expanded FMLA provisions of the Families First Coronavirus Response Act (“FFCRA”), as well as corrections to these regulations and clarifications in its informal guidance, principally for Q&As 15, 16, 31, 32, and 33. Some of the content of this post updates and clarifies information originally posted on March 27, 2020. Key provisions for employers to consider include the following:

Emergency Paid Sick Leave and Expanded FMLA to Care for a Son or Daughter over 18

In addition to children under 18, paid sick leave and expanded FMLA leave under the FFCRA can be taken to care for a child 18 years of age or older with a disability who cannot care for him or herself due to that disability if that child’s school or place of care is closed or his or her child care provider is unavailable, due to COVID-19 related reasons, and the employee is unable to work or telework as a result.

Use of Pre-Existing Paid Leave and Expanded FMLA Leave under the FFCRA

Under expanded FMLA provisions of the FFCRA, the first two workweeks of expanded FMLA leave are unpaid. However, an employee may elect to use paid sick leave under the FFCRA during these first two workweeks if the employee has not previously used that sick leave, where the employee receives two-thirds pay. If the employee and the employer agree, the employee may also use pre-existing paid leave with paid sick leave under the FFCRA so that he or she may be paid full normal earnings during these first two workweeks.

For the remaining ten weeks of expanded FMLA leave, the employee may elect, or the employer may require, that the employee use pre-existing paid leave concurrently with expanded FMLA leave. The pre-existing paid leave must be that which would normally be available to the employee if he or she missed work to care for a child, i.e., personal leave or PTO, and not paid leave that is available if the employee were ill or needed medical treatment. While using expanded FMLA leave and pre-existing paid leave concurrently, the employee shall be paid the full amount the employee would have been paid under the pre-existing paid leave policy, but the employer can only claim a tax credit for those payments required by expanded FMLA (i.e. two-thirds pay).

Use of Pre-Existing Paid Leave and Paid Sick Leave under the FFCRA

An employer cannot require an employee to take pre-existing paid leave prior to using paid sick leave under the FFCRA. Similarly, an employer cannot require an employee to use pre-existing paid leave concurrently with paid sick leave under the FFCRA. However, if the employee and employer agree, the pre-existing paid leave may be used to supplement the amount the employee received from paid sick leave, up to the employee’s normal earnings.

Use of Expanded FMLA with Standard FMLA Leave

For employers with 50 or more employees who are subject to standard FMLA provisions, the regulations and guidance make clear that employers are not subject to an additional 12 weeks of leave to care for a son or daughter whose school or child care is unavailable if the employee has already taken FMLA leave within the 12-month period the employer uses to track such leave under its existing FMLA policies. Only 12 weeks of total FMLA leave are required for any purpose within that 12-month period, including expanded FMLA leave under the FFCRA. Additionally, employees are only entitled to a maximum of 12 weeks of expanded FMLA leave under the FFCRA between April 1 and December 31, 2020, no matter which 12-month period the employer uses to track FMLA leave under its standard FMLA policies.

Tax Credits for Supplemental Leave

Note that under either paid sick leave or expanded FMLA, an employer is only entitled to tax credits for the amount of pay mandated by the FFCRA, and not for the amount of supplemental pay for pre-existing PTO agreed to by the employer and employee to bring the employee to full normal earnings.

Documentation Requirements

If an employee takes either paid sick leave or expanded FMLA leave under the FFCRA, the employee must provide to the employer documentation containing the following information:

• Name of employee requesting leave;
• Date(s) for which leave is requested;
• Qualifying reason for the leave; and
• Oral or written statement from the employee that he or she is unable to work because of the qualifying reason.

Additional information is required for the following qualifying reasons:

• Quarantine or Isolation Order. If an employee is requesting leave because he or she is subject to a quarantine or isolation order, or is caring for someone that is subject to such an order, then the employee must provide the name of the government entity that issued the quarantine or isolation order.
• Advice to Self-Quarantine. If an employee is requesting leave because he or she has been advised by a healthcare provider to self-quarantine or is caring for an individual advised by a healthcare provider to self-quarantine, then the employee must provide the name of the healthcare provider who advised the self-quarantine.
• School or Place of Care Closed or Child Care Provider Unavailable. If an employee is requesting leave to care for a child whose school or place of care is closed, or childcare provider is unavailable, the employee must provide:
  • The name of the child being cared for;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement from the employee that no other suitable person is available to care for the child.

The employer will need this documentation in order to claim tax credits for payments made under the FFCRA. An employer is not required to provide leave if the employee has not provided sufficient materials to support the applicable tax credits.

Please be advised that there are provisions of the FFCRA and DOL guidance that are not covered in this post, and that the above examples are not specific to every employer’s situation. Attorneys at Wharton, Aldhizer & Weaver are available to assist with compliance and to answer any questions on these matters.