Mother caring for child while on FFCRA

Employers and their employees are struggling to understand how new FFCRA leaves affect existing leave benefits. Join James and Sue as they break down how current leave laws intersect.

Transcript: 

James: Welcome to our Podcast. I’m your host, James Venable, Vice President of Compliance and Employment Law for Reed Group, a Guardian company. Joining me on the podcast is Sue Woods, Senior Compliance Counsel at Reed Group.

We offer these podcasts to provide business owners with quick, easy to understand information about COVID-19 and how it is affecting employers. On this podcast, we will discuss how the new leaves that are available under the Families First Coronavirus Response Act (FFCRA) interact with other types of leave that employers may offer, such as paid time off (PTO), vacation or sick time, etc.

As a brief recap, the FFCRA applies to private employers with 499 or fewer employees as well as certain public employers of any size. Under this law, covered employers are required to provide two new types of leave for COVID-19 related events, including up to 80 hours of paid sick leave and up to 12 weeks of Extended FMLA leave to care for a child whose school or childcare provider has been closed.

Both employers and employees are struggling with how these new FFCRA leaves affect existing leave benefits, such as whether they run concurrently, meaning at the same time, or if one type of leave must be used first before the other types kick in. Let’s focus first on the new FFCRA Emergency Paid Sick Leave.

James: Sue, does the Emergency Paid Sick Leave under FFCRA replace sick leave that an employer may already provide to its employees?

Sue: No, the emergency paid sick leave (or EPSL) does not reduce or eliminate any other employee benefit to which an employee may be entitled. In other words, it is in addition to any form of paid or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement, including vacation, personal, medical, or sick leave benefits. For example, let’s say an employer provides its employees with 5 days of paid sick time each year. The additional 10 days, or 80 hours of EPSL under the FFCRA is in addition to the 5 sick days that are provided by the business.

James: OK, so does that mean that an employee in your example gets a total of 15 paid sick days a year?

Sue: Like any good legal answer, it depends! Let’s break it down.

  • First, EPSL may be used only for 5 specific reasons related to COVID-19, including when an employee is subject to a quarantine or isolation order, has been advised by their doctor to self-quarantine, is experiencing symptoms and is seeking a medical diagnosis, is caring for an individual who is subject to a quarantine order or a doctor’s self-quarantine advice, or to care for his or her child whose school or place of business is closed due to COVID-19. If the employee cannot work because of one of these reasons, he or she is entitled to the 10 days of EPSL. The employee then could use their 5 days of company-provided paid sick leave for any reason that is permitted under that sick leave policy. So yes, if an employee uses EPSL, they are also entitled to use their sick time which could total 15 days of paid time away from work.
  • If, however, the employee does not need to use EPSL for one of the 5 qualifying reasons before December 31, 2020, when EPSL ends, then the employee does not get to use the 10 days of EPSL leave and has just the 5 days of paid sick time provided by the company.
  • Similarly, if the employee qualifies to use EPSL before the end of the year but does not otherwise get sick or have another reason to use the company’s paid sick time, he or she would only use the 10 days of paid EPSL.

James: So, what about concurrency – does EPSL run at the same time as other company-provided leaves, whether paid or unpaid?

Sue: No, because it is an additional benefit, EPSL does not run at the same time as other company-provided leaves, such as vacation time , PTO, or sick leave, even when the reason for the leave could qualify for more than one leave type. In addition, employers may not require that their employees use vacation or PTO time prior to using the FFCRA EPSL.

James: So, are there any scenarios when EPSL runs at the same time as another leave? What about when a worker takes time off to care for a child due to a COVID-19 school closure?

Sue: That’s a great question, James. As you know, caring for a child due to a COVID-19 school closure is the one and only leave reason that qualifies for both FFCRA leaves – EPSL and EFMLA. When time off is taken for that reason, EPSL runs concurrently with EFMLA. The employer must pay EPSL to the employee for the initial two weeks of leave (which is unpaid under the EFMLA). Then, for the remaining 10 weeks of EMFLA, the employee is entitled to receive two-thirds of his or her regular pay. Consequently, for that leave reason, an employee is entitled to a total of 12 weeks of leave under the FFCRA, with EPSL and EFMLA running concurrently for the first two weeks.

James: Interesting. So, let’s talk more about the Expanded FMLA entitlement. I know that it provides up to 12 weeks of time off when an employee needs to care for his or her child whose school or childcare provider has closed due to COVID-19. Can employers run company-provided leaves concurrently with Expanded FMLA, or is it similar to the EPSL rules that do not permit concurrent use?

Sue: You know, James, employers may be familiar with administering regular, or “classic” FMLA, which allows employers to require that their employees substitute accrued paid leave for unpaid FMLA leave.  Similarly, the expanded FMLA regulations allow employers to require that applicable company-provided leaves run concurrently with the EFMLA. Generally, it will be limited to those company-provided leaves that would otherwise apply when an employee must care for his or her child because their school or place of care is closed (or child care provider is unavailable) due to a COVID-19 related reason, typically PTO and/or vacation time. This is in sharp contrast to the EPSL rules.

James: Finally, let’s talk about how both the FFCRA leaves affect an employee’s regular FMLA entitlement. Do either EPSL or EFMLA count against the 12 weeks of regular FMLA entitlement or are they an additional entitlement?

Sue: Great question to end on, James. EFMLA counts towards an employee’s 12 workweeks of FMLA entitlement in a 12-month period. If an employee has exhausted his or her 12 weeks of regular FMLA, he or she is not eligible for additional EFMLA leave to care for a child whose school or place of care is closed. Moreover, if an employee uses all 12 weeks of EFMLA for school closure reasons, the employee does not have any entitlement left to use for regular FMLA reasons, such as their own serious health condition, bonding with a new child, qualifying military exigencies, etc., until the next 12-month period.

EPSL, on the other hand, is independent of the regular FMLA entitlement. An employee may use EPSL even if they have fully exhausted their 12 weeks of regular FMLA leave, and the 10 days of EPSL does not count against their FMLA entitlement.

James: That’s helpful, Sue, thank you. It is really important for employers to understand which leaves may run concurrently, which may not, and how that affects the total amount of time off an employee may receive.

That’s it for today’s podcast. Please check out our COVID-19 related information on both the Guardian and ReedGroup websites.

Thank you for tuning in and we hope you’ll join us for our next podcast.

ReedGroup, a wholly owned subsidiary of The Guardian Life Insurance Company of America®. GUARDIAN ® is a registered trademark of The Guardian Life Insurance Company of America ®; ©Copyright 2020 The Guardian Life Insurance Company of America 2020-100054 (4/21)

Information provided on this podcast is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.