Intermittent ESL and EFMLA Leave and the Interplay Between EFMLA/ESL and the FMLA
In August 2020, the intermittent leave provisions of the FFCRA were called into question by a federal court in New York. In response, the U.S. Department of Labor reaffirmed the employer approval requirement and provided further explanation. More information on the revised regulations can be found here.
This summary delves into the DOL regulations and the guidance they provide on the issue of how to deal with intermittent FFCRA leave.
The FFCRA regulations, in section 826.50, allow employees to take paid sick leave (PSL) or Expanded Family Medical Leave (EFMLA) under the FFCRA intermittently only if both the employer and an eligible employee agree to do so and subject to certain conditions. Although the agreement between the employer and employee does not need to be memorialized in writing, we suggest that the agreement be set forth in writing in order to ensure clear and mutual understanding between the parties.
Employees who are reporting to work
Employees who are reporting to work may take PSL or EFMLA depending upon the reason for the leave. If an employee who is reporting to work needs leave intermittently to care for the employee’s son or daughter whose school or place of child care is closed, or whose child care provider is unavailable, they can take intermittent leave which will be recorded in any increment of time agreed to between the employer and the employee. For example, if the employee can work part of the day but needs to be home part of the day to care for their child, they would take intermittent leave for the period of time that they were not able to come to work.
However, if the employee is taking sick leave not because of a child care issue, because of a federal, state or local quarantine or isolation order related to COVID-19; because they have been advised by a healthcare provider to self-quarantine due to COVID-19; because the employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a healthcare provider; because the employee is caring for an individual who is subject to a federal, state or local quarantine or isolation order or because at the advice of a healthcare provider to self-quarantine; or because the employee has a substantially similar condition, the employee may not take the leave intermittently. In other words, the employee must take the permitted days of PSL consecutively until the PSL leave entitlement has expired or the employee is no longer subject to one of the above-referenced qualifying reasons. For example, if the medical provider no longer believes the employee needs to self-quarantine but the employee has only taken 40 hours of PSL, they would still have 40 hours of PSL available to them.
If an employee is teleworking, or normally works from home, the employer and employee may agree that the employee can take leave for any reason under the EFMLA intermittently and in any agreed increment of time.
If the employee is taking PSL or EFMLA leave intermittently, only the amount of leave actually taken should be counted towards the employee’s leave entitlement. For example a normal 40-hour a week employee who only takes three (3) hours of leave each day should only have 15 hours of paid sick leave docked against their PSL, or 37.5% of the work week counted against them under the EFMLA.
The intersection between PSL and EFMLA Leave to care for a child
Both the PSL and the EFMLA provide leave to an eligible employee who needs leave to care for a son or daughter whose place of school or place of child care is closed or whose child care provider is unavailable under certain circumstances. The benefits provided by PSL run concurrent with those provided under the EFMLA. The eligible employee may take up to 12 weeks of EFMLA with the first two weeks of leave to be paid under the PSL benefit, if still available to the employee. The remaining 10 weeks will be paid under EFMLA. However, if the employee has used up all or part of their PSL for other reasons, the amount of PSL already used cannot be used to pay for the first two weeks of EFMLA leave. On the other hand, an eligible employee who has exhausted all of his or her traditional FMLA leave (for reasons not related to EFMLA coverage) may still use PSL to pay for leave while unable to work in order to care for a child due to school closure or unavailability of child care.
If an eligible employee is unable to use PSL to cover the first two weeks of EFMLA because PSL was exhausted for other reasons, such employee may choose to substitute other earned or accrued paid leave provided by the employer during this period. However, an employer may not force an employee to use the company’s accrued paid leave during this period and the eligible employee will retain their earned and accrued paid leave if not used.
Intersection of EFMLA and FMLA due to leave to care for a child
The EFMLA provides another basis for an employee to take medical leave under the Family Medical Leave Act. Consequently, an employee who has already taken some or all of their traditional FMLA leave for non-COVID-19 reasons during the FMLA -covered 12 month period will only be eligible for EMFLA lease for the remaining portion of their FMLA leave period. For example, the FMLA provides up to 12 weeks of unpaid leave during a specified 12-month period. In contrast, the EFMLA provides for up to 12 weeks of paid leave during the period between April 1, 2020 and December 31, 2020. If the employee has used unpaid FMLA in any period of time that includes the seven-month EFMLA period, the employee’s 12-week EFMLA entitlement will be reduced by the number of weeks of FMLA taken during any period of time that includes that seven-month EFMLA period. This is true even if the seven-month EFMLA period spans two 12-month FMLA periods. The regulations use the example of an eligible employee whose 12-month FMLA period commences on July 1, 2020, but who took seven weeks of EFMLA leave in May and June of 2020. Such employee can only take an additional 5 weeks of EFMLA leave even though the first 7 weeks of EFMLA leave fell in the prior 12-month traditional FMLA period.
If an eligible employee takes fewer than 12 weeks of EFMLA, they may take the remaining portion of their 12 weeks of traditional unpaid FMLA leave for reasons covered by the FMLA. For example, if the employee has taken 8 weeks of EFMLA leave, they will have 4 weeks of FMLA leave available to them during their FMLA 12-month period.
Since neither the PSL or the EFMLA leave is paid at the eligible employee’s full regular rate of pay, employers and eligible employees may agree, where federal and state law permits, to have accrued but unused paid leave supplement their pay under the EFMLA so that the employee can receive the full amount of his or her normal pay. For example, since EFMLA is to be paid at two-thirds of the eligible employee’s regular rate of pay, up to $200.00 per day, employer and employee could agree for the eligible employee to add one-third hour of accrued paid leave, such as vacation pay, for each hour of EFMLA leave.
FFCRA Regulations Overview
- Six Qualifying Events for Emergency Paid Sick Leave
- FFCRA Employee Eligibility, Including the “Healthcare Provider” Exemption
- Which Employers the FFCRA Applies to, and How Small Businesses Obtain an Exemption
- FFCRA Employer Notice Requirements
- FFCRA Employee Notice of Need for Leave Requirements
- Continued Healthcare Coverage and the Intersection with Other Laws
- FFCRA Return to Work Issues, Employee Record-Keeping Obligations and Prohibited Acts
- Calculating the paid benefits owed under the FFCRA
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