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DOL Clarifies When an Employer Can Require an Employee to Use Paid Time Off Under the FFCRA

By Joseph S. Brown, Esq.

Last week, the U.S. Department of Labor (DOL) updated its Q&A on issues related to the Families First Coronavirus Response Act (FFCRA), available here.

By way of background, the FFCRA has two key components: (1) Paid Sick Leave (PSL); and (2) Emergency Family and Medical Leave (FMLA+).  The latest installment of Q&A guidance tackles, among other things, the following topics:

  • Computing PSL and FMLA+ Entitlement for Employees with Irregular Hours (Q&A 80-81)
  • Computing the Average Regular Rate for the FFCRA (Q&A 82-83, 85)
  • Taking FFCRA Leave Concurrently with Employer-Provided Leave (Q&A 86)
  • Stay-at-Home Orders vs. Quarantine or Isolation Orders (Q&A 87)
     

This alert focuses on one of the more perplexing issues under the FFCRA: Under what circumstances may an employer require an employee to use his or her existing leave under a company policy for paid time off (PTO) and when does the choice belong to the employee under the DOL regulations? 

Here is a breakdown of what employers need to know about the intersection of PTO, PSL, and FMLA+:

  1. An employer may not require that PTO run concurrently with—that is, cover the same hours as—PSL.
     
  2. An employer may require that PTO to allow the employee to care for his or her child because of a lack of childcare run concurrently with the paid weeks of FMLA+. PTO that runs concurrently with FMLA+ will enable the employee to receive 100% of his or her daily pay plus the FMLA+ 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 FFCRA, not for any concurrent PTO applied. Once an employee exhausts all available PTO, FMLA+ is continued to be paid out of the statutory two-thirds rate.

    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 PSL or PTO (but not both) during the first two weeks of unpaid FMLA+. If, however, an employee has used some or all paid sick leave under the PSL, any remaining portion of that employee’s first two weeks of FMLA+ may be unpaid. During this period of unpaid leave under the FMLA+, the employee may choose—but the employer may not require the employee—to use paid leave that would be available to the employee to take in order to care for the employee’s child because child care is not available.

Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak.  Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com

Joseph S. Brown – js[email protected]

Ann E. Evanko – [email protected]

Katherine L. Wood – [email protected]

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