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The Intersection of FFCRA Leave, PTO, and Other Leaves

Employers and employees alike are struggling to understand which leaves and time-off benefits may be used for COVID-19 related reasons. For employers who are subject to the Families First Coronavirus Response Act (FFCRA), many questions continue to crop up. For example, may employees use their company-provided PTO before or after using FFCRA paid emergency sick leave, resulting in the stacking of time off? Or, may employers require that all applicable leaves run concurrently? Here is a look at those questions as well as additional guidance regarding how leaves may be sequenced in compliance with the FFCRA.

FFCRA Emergency Paid Sick Leave (EPSL) is an Additional Entitlement

The EPSL is a federal paid leave entitlement that requires covered employers to provide up to 80 hours of paid sick leave to eligible full-time employees (pro-rated for part-time employees) for six COVID-19 related reasons. It 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. (Read more about the FFCRA and EPSL here.)

As a result, employers may not require that company-provided leaves, paid or unpaid, run concurrently with leave taken under the EPSL. Similarly, employers may not require or coerce employees to first use company-provided leaves before using EPSL. The result is that employees may “stack” EPSL and other leaves for qualifying reasons, thereby extending the length of their time away from work.

Note too that EPSL is not impacted by an employee’s prior use of federal Family and Medical Leave Act (FMLA) leave. Employees who have exhausted their 12 weeks of FMLA are still entitled to take two weeks of EPSL for a covered reason.

Top Up is Allowed, if Both Employer and Employee Agree

If an employer and an employee agree, the employee may use preexisting leave entitlements to supplement, or top up, the amount he or she receives under EPSL, up to the employee’s normal earnings. Remember, the amount of EPSL pay depends on the leave reason and is subject to a daily and aggregate cap, so employees may want to supplement their EPSL pay by using another leave entitlement to get paid their normal earnings.
Please keep in mind, however, that employers may not receive a tax credit for any paid sick leave that is over and above the limits set forth under the EPSL.

Employers May Require Other Leaves to Run Concurrently with Expanded FMLA for Childcare Purposes

In contrast to the EPSL rules, the expanded FMLA regulations allow employers to require that applicable company-provided leaves run concurrently with expanded family and medical leave under the FFCRA (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.

If an employer requires, or an employee requests to use paid company leaves in this situation, the employer must pay the employee’s full pay during the leave until the employee has exhausted available paid leave under the employer’s plan. However, the employer may obtain tax credits only for wages paid at 2/3 of the employee’s regular rate of pay, up to the daily and aggregate limits in the EFMLA (i.e., $200 per day or $10,000 in total).

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 FMLA, he or she is not eligible for additional EFMLA leave to care for a child whose school or place of care is closed. Remember too, that EFMLA is available only until December 31, 2020.

Interaction of EPSL and EFMLA

Only one COVID-19 related leave reason triggers leave under both EPSL and EFMLA, namely caring for a child whose school or place of care has been closed due to COVID-19 reasons. In this circumstance, EPSL runs concurrently with EFMLA with EPSL paying the employee for the initial two weeks of leave (which is unpaid under the EFMLA) after which the employee is entitled to receive two-thirds of his or her pay for the remaining ten weeks of EMFLA. Consequently, for that leave reason, an employee is entitled to a total of 12 weeks of leave under the FFCRA.

For other leave reasons under the EPSL, such as quarantines and isolation orders, the employee is entitled to receive two weeks of EPSL but would not qualify for EFMLA leave. If employees use their two weeks of EPSL, they remain entitled to use the full 12 weeks of EFMLA (assuming they haven’t previously used any of their 12-week FMLA entitlement) should they need to care for their child due to a school/daycare closure.

No FFCRA Benefits While Out for Workers’ Comp or Temporary Disability

Employees who are receiving workers’ compensation benefits due to a work-related illness or injury are not entitled to EPSL or EFMLA leave. Similarly, if an employee is receiving temporary disability benefits because he or she is unable to work, the employee may not take EPSL or EFMLA leave. If, however, the employee had returned to work on light duty before needed FFCRA leave, then EPSL and/or EFMLA may apply, depending on the qualifying reason.

Additional FFCRA Resources – EPSL, EFMLA

Employers may seek additional answers to frequently asked questions regarding the use of EPSL and EFMLA on the Department of Labor’s FFCRA website. In addition, be sure to review our ReedGroup Coronavirus Resource Center which includes FAQs, links to compliance webinars, and other COVID-19 related materials.

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.


Information provided on this blog 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.

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