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Wednesday, April 22, 2020

Coronavirus update 4-22-2020: I was (mostly) correct on the intersection between employer-provided paid leave and leave under the FFCRA


Last week I took a stab at making sense of the messy and unclear rules surrounding the substitution of employer-provided leave (which, for the sake of simplicity, I’ll refer to as (“PTO”) for paid sick leave (“EPSL”) and expanded Family and Medical Leave (“EFMLA”) under the Families First Coronavirus Response Act.

I was (mostly) correct.

Yesterday, the Department of Labor published its 5th set of FAQs discussing the FFCRA. Question 86 squarely addresses and clarifies the intersection between employer-provided paid leave and leave under the FFCRA.

1. An employer may not require that PTO run concurrently with—that is, cover the same hours as—EPSL.

2a. An employer may require that PTO run concurrently with the paid weeks of EFMLA. PTO that runs concurrently with EFMLA will enable the employee to receive 100 percent of his or her daily pay plus the EMFLA benefit (two-thirds of her or her regular rate of pay, capped at $200 per day and $10,000 in total). Note, however, that the FFCRA’s payroll tax credit only reimburses the employer for the paid leave provided under the Act, not for any concurrent PTO applied. Once an employee exhausts all available PTO, EFMLA is continued to be paid out of the statutory two-thirds rate.

2b. Alternatively, an employer and employee may agree to top off the two-thirds EFMLA pay to an amount equal to 100 percent of the employee’s regular pay. Again, the FFCRA’s payroll tax credit only reimburses the employer for the paid leave provided under the Act.

3. An employee may elect—but an employer may not require the employee—to take EPSL or PTO (but not both) during the first two weeks of unpaid EFMLA.

Crystal clear, right?

* Photo by Camylla Battani on Unsplash