The U.S. Department of Labor’s (DOL’s) Wage and Hour Division recently posted additional guidance regarding paid sick and emergency childcare leave under the Families First Coronavirus Response Act (FFCRA). Much of the guidance offers details and clarifications on the calculation of paid leave, including:

• How to calculate an employee’s regular rate of compensation,
• Whether the regular rate must be recalculated each time leave restarts, and
• The number of hours due under each leave type in different situations.

But the guidance also addresses how an employer’s other leave benefits — including vacation and PTO benefits — interact with FFCRA paid leave, clarifying lingering questions about the concurrent use of leave.

Concurrent leave

The guidance explains that an employer may not require that employer-provided paid leave run concurrently with (in other words, cover the same hours as) paid FFCRA sick leave. However, paid leave available under the employer’s leave policy that allows an employee to care for a child because a school or a childcare provider is closed or unavailable because of the novel coronavirus (COVID-19) pandemic may be required to run concurrently with paid FFCRA emergency childcare leave.

According to the guidance, an employer requiring concurrent leave must pay the employee’s full pay until the employee has exhausted available paid leave under the employer’s leave policy. If the employee exhausts available paid leave under the employer’s policy but has more FFCRA paid emergency childcare leave available, the employee will receive any remaining emergency childcare leave in the amounts prescribed by the FFCRA.

Alternate approaches

Alternatively, the employer and employee can agree (subject to federal or state law) to have paid leave provided by the employer supplement the emergency childcare pay so that the employee may receive the full amount of normal compensation. For the first two weeks of emergency childcare leave — when that leave can be unpaid — an employee may elect, but cannot be required, to take either FFCRA paid sick leave or paid leave under the employer’s leave policy, but not both.

If an employee has used some or all FFCRA paid sick leave, any remaining portion of the employee’s first two weeks of FFCRA emergency childcare leave may be unpaid. However, the employee may choose, but cannot be required, to use paid leave under the employer’s leave policy concurrently with the unpaid leave.

Better understanding

This guidance clarifies an uncertainty left unresolved by earlier DOL guidance — not only because of contradictory provisions in the initial temporary regulations, but also because of confusing terminology in that previous guidance.

Stating that an employee’s existing paid leave entitlements will be paid “concurrently” with other leave doesn’t unambiguously indicate whether leave relating to the same day is a supplement or substitute. Nonetheless, the more recent guidance provides a better understanding of when an employer can require the use of existing leave to entirely replace FFCRA leave, and when existing leave can be used only as a supplement. Contact us for further clarification.

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