Authored by Dean R. Dietrich
Several questions have come up regarding compliance with the Families First Coronavirus Response Act. As you know, this Act provides Emergency Paid Sick Leave and Emergency Extended Family and Medical Leave (with limited pay for employees taking this extended leave). Questions that have come up pose interesting interpretations under these two leave benefits.
The first question involves exempting certain employees from coverage under these two new and special leave benefits. In other words, can an employer (especially a public employer) determine that an employee is eligible for Paid Sick Leave but not for the Extended Family and Medical Leave (with limited pay provisions). The Department of Labor has issued new regulations in Section 826 entitled “Paid Leave Under the Families First Coronavirus Response Act”. Under these regulations, it is strongly implied that a public sector employer can exempt employees from receiving one of the benefits while being eligible to receive the other leave benefit. While this may not make sense, the Regulations recognize that employees who qualify under the definition of “healthcare provider” and “emergency responder” could be excluded from the Paid Sick Leave or the Expanded Family and Medical Leave. The reference to “or” provides grounds for deciding whether an employee that meets the broad definition of emergency responder would qualify for one of the benefits but not the other benefit. Employers should be careful to clearly document the rationale for treating an employee differently under each of these benefits.
The more interesting question in how you coordinate the Paid Sick Leave benefit and the Extended Family/Emergency Leave benefit when an employee is asking for time off to care for a child due to school or a place of care being closed or the unavailability of childcare services. An employee can claim the use of Paid Sick Leave for the first two weeks of requested leave for this reason and then can claim Extended Family/Medical Leave (with paid benefits) for the second two weeks (or 80 hours) of requested time off to care for a child due to school or childcare being closed or the lack of available childcare. Additional time off can be taken under the regular FMLA law up to a total of 12 weeks.
The Regulations do clarify that the first two weeks claimed by an employee for this purpose is paid at the two-thirds rate rather than the full-rate. The second two weeks (or 80 hours) is also paid at the two-thirds rate. In other words, under these new leave benefits, an employee who is unable to work or telework because of a child being at home due to a school closing or a daycare closing or the lack of availability of childcare, can receive four weeks (or 160 hours) of pay at the rate of two-thirds of the employee’s normal rate of pay. Any leave beyond the first 160 hours would be considered without pay and subject to the same conditions as regular family/medical leave. This means that the employer could require the employee to use paid time off or vacation benefits during that time. In addition, the employer may allow an employee to supplement the time off at the rate of two-thirds pay by using sick leave, PTO or vacation to make up the difference to match the full-pay rate for the employee.
These Regulations provide clarification regarding the intersection between Paid Sick Leave, Extended Family/Medical Leave and regular family/medical leave. This benefit continues through December 31, 2020. It remains to be seen whether these special leave benefits will continue after that date.
