United States: Frequently Asked Questions Regarding The Families First Coronavirus Response Act (FFCRA)

Butler Snow's Labor & Employment attorneys have compiled some of the most frequently asked questions we have received regarding the FFCRA. Employers should be aware that there are still many unanswered questions regarding the FFCRA and how it will be interpreted and enforced. For many of the questions we have received, there currently is not a certain answer. The questions and answers below are based on the information available at this time and may be updated as the situation develops. We are basing our interpretations on current FMLA law as it applies to the FFCRA. The United States Department of Labor has been directed to issue further regulatory guidance on the FFCRA and is expected to do so in the next few days.

We have updated this list of frequently asked questions based on the Department of Labor's updated Questions and Answers. There are minor updates throughout questions 1-15, but questions 16-42 focus on new information from the Department of Labor's updated Questions and Answers.

1. What is the Families First Coronavirus Response Act (FFCRA)?

President Trump signed the FFCRA into law on March 18, 2020. Generally, the FFCRA requires employers with less than 500 employees and certain public employers to provide a specific amount of paid sick leave to employees impacted by the coronavirus (COVID-19). It also provides a tax credit to employers to mitigate the costs of providing the required leave. The effective date is April 1, 2020. The FFCRA contains three separate sections:

• Emergency Family and Medical Leave Act expansion
• Emergency Paid Sick Leave
• Tax Credits for paid sick and paid family and medical leave

The Department of Labor's (DOL) summary of the FFCRA can be found here and the DOL's FAQ can be found here.

2. When do employers have to start complying with the Act?

The FFCRA's paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020. The DOL has issued a Field Assistance Bulletin stating that it will not bring enforcement actions against any public or private employer for violations of the FFCRA occurring within 30 days of the enactment, i.e. March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act. For purposes of this non-enforcement position, an employer who is found to have violated the FFCRA acts "reasonably" and "in good faith" when all the following facts are present:

• The employer remedies any violations, including by making all affected employees whole as soon as practicable. As explained in a Joint Statement by the Department, the Treasury Department and the Internal Revenue Service (IRS) issued on March 20, 2020, [2] this program is designed to ensure that all covered employers have access to sufficient resources to pay required sick leave and family leave wages.[3]
• The violations of the Act were not "willful."
• The Department receives a written commitment from the employer to comply with the Act in the future.

If the public or private employer either (1) violates the Act willfully; (2) fails to provide a written commitment to future compliance with the Act; or (3), fails to remedy the violation upon notification by the DOL, the employee seeking payment, or a representative of that employee, including by making all affected employees whole as soon as practicable, the Department reserves its right to exercise its enforcement authority.

After April 17, 2020, this limited stay of enforcement will be lifted, and the Department will fully enforce violations of the Act, as appropriate and consistent with the law.

3. What employers are covered under the FFCRA?

The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.

The Department of Labor's (DOL) summary of the FFCRA can be found here and the DOL's FAQ can be found here.

4. If I have less than 50 employees, does COVID-19 Qualifying FMLA Leave apply to my business?

Yes, but the Act gives the Secretary of Labor the authority to issue regulations for good cause to exempt small businesses with fewer than 50 employees where the imposition of these requirements would jeopardize the viability of the business as a going concern. The forthcoming regulations hopefully will provide further guidance regarding how the exempt status protocol will work.

5. What employees are eligible?

Employees are eligible to take FMLA leave if they work for a covered employer and:

• have worked for their employer for at least 12 months;
• have at least 1,250 hours of service over the previous 12 months; and
• work at a location where at least 50 employees are employed by the employer within 75 miles.

Special hours of service requirements apply to airline flight crew employees and to breaks in service to fulfill National Guard or Reserve military service obligations pursuant to the Uniformed Services Employment and Reemployment Rights Act (USERRA). See DOL guidance here.

All employees of covered employers are eligible for two weeks of expanded family and medical leave for specified reasons related to COVID-19. Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19. However, under the Act special rules apply for employees defined as Health Care Providers and Emergency Responders under the FMLA. Further, Employers of certain health care providers or emergency responders may elect to exclude such employees from the application of this rule. In other words, while health care providers and emergency responders may elect to offer these paid leave benefits to their employees, they are exempt from the FFCRA. See below.

The Department of Labor's (DOL) summary of the FFCRA can be found here and the DOL's FAQ can be found here.

6. What benefits are qualified employees eligible to receive?

According to DOL Guidance, the FFCRA provides that employees of covered employers are eligible for:

Two weeks (up to 80 hours) of Paid Sick Leave at the employee's regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

Two weeks (up to 80 hours) of Paid Sick Leave at two-thirds the employee's regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

Up to an additional 10 weeks of expanded family and medical leave at two-thirds the employee's regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

7. Under the Emergency Paid Sick Leave Act, how much leave are employers required to provide?

Full-time employees are entitled to 80 hours and part-time employees are entitled to a number of hours equal to the number of hours that employee works, on average, over a two-week period; however, the paid benefits are capped at certain amounts per employee.

In the case of an employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked if such employee had not taken emergency paid sick time, the employer shall use a number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such paid sick time, including hours for which the employee took leave of any type. If the employee did not work over such period, the employer may calculate the rate by using the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

The Department of Labor's (DOL) summary of the FFCRA can be found here and the DOL's FAQ can be found here.

8. Under the Emergency Paid Sick Leave Act, how much pay are employees entitled to?

The amount of pay an employee is entitled to receive depends on the employee's particular situation. Employees required to self-quarantine under the first two scenarios (above) are entitled to receive their full pay up to a maximum payment of $511 per day (and $5,110 in the aggregate for the 10 days). Employees who must take leave to care for another must be paid the lesser of two-thirds (2/3) their full rate of pay or $200 per day ($2,000 in the aggregate).

9. Does closing our place of employment as a preventative measure or to comply with local, city, state "shelter at home" recommendations or mandates trigger obligations under the FFCRA?

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

• is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
• has been advised by a health care provider to self-quarantine related to COVID-19;
• is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
• is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
• is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
• is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Whether general local, city or state "shelter at home" orders or recommendations apply is yet to be clarified by the DOL, but we expect specific guidance soon. That said, if the "shelter at home" order is in place after April 1 it is possible the FFCRA will apply. Again, stay tuned for updates on this issue.

10. Do I have to provide the mandated sick pay for my employees?

Yes. If you are a private entity that employ less than 500 employees or a certain public entity that employs more than 1 employee, then compliance with the Act is required. If you chose not to comply, you will be in violation of the FLSA.

However, there is provision in the Act for the Secretary of Labor to exempt employees defined as healthcare providers and emergency responders under the FMLA and employers that employ less than 50 from the requirements in the Act.

11. Do my employees need to use up all PTO hours before qualified leave starts?

No, employers are specifically prohibited from requiring employees to use up other offered leave before using the FFCRA Leave. This qualified leave is in addition to the benefits already provided. The FFCRA specifically states that an employee affected by COVID-19 has the right to use paid emergency sick leave before using existing PTO benefits; an employer cannot require an employee to use PTO prior to receiving paid sick time under the FFCRA. In other words, the law specifically allows employees to choose the order in which they take their leave.

12. How do I recover the sick and child care pay that I pay to my employees? Will I be able to reduce my estimated income tax payments?

Covered employers qualify for reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. The DOL indicates that applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage.

The IRS indicates that it will be issuing guidance the week of March 23, 2020, providing eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid.

13. Does my company qualify where the parent or holding has several subsidiaries that in the aggregate have over 500 employees, but no individual subsidiary has over 500 employees?

According to DOL Guidance a company will have fewer than 500 employees if, at the time the company's employees leave is to be taken, the company employs fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, a business should include employees on leave; temporary employees who are jointly employed by you and another employer regardless of whether the jointly-employed employees are maintained on only one business or another employer's payroll; and day laborers supplied by a temporary agency regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.

In general, a corporation (including its separate establishments or divisions) is a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

The joint employer test comes into play where two or more businesses exercise control over the work or working conditions of the employee. Where an employee performs work which simultaneously benefits two or more employers a joint relationship can also exist. If either one of these tests are met, then the companies would be considered one employer and the employees could be aggregated for purposes of determining whether the FFCRA applies.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

14. Can I exempt my doctors and nurses from the Act under the health care provider exemption?

The FFCRA states that "health care providers" will be exempt. The FFCRA directs us to use the FMLA definition of "health care provider." Under the FMLA, health care provider means: "(i) A Doctor of Medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (ii) Any other person determined by the Secretary to be capable of providing health care services." The regulations clarify that this includes podiatrists, dentists, clinical psychologists, optometrists, and chiropractors, nurse practitioners, nurse-midwives, clinical social workers and physician assistants. So as the FFCRA is currently written, yes, doctors would be exempt. However, it appears that nurses, other than nurse practitioners and mid-wives, would not be fall under the health care provider exemption.

We expect the forthcoming regulations issued by the Secretary of Labor will shed further light on this issue.

15. How will the new law affect unemployment claims?

When Congress passed the FFCRA, it also passed the Emergency Unemployment Insurance Stabilization and Access Act of 2020. Each state has its own system of providing unemployment benefits for laid off or terminated workers and the Act provides $1 billion dollars in emergency grants available to state unemployment programs if certain conditions are met. Half of the funds are reserved for states if those states (1) require employers to provide notice of the availability of unemployment benefits at the time of termination; (2) ensure accessibility to the application process is available in at least two ways; and (3) notifying applicants when their application is received and processed. The other half of the funds are reserved for states which see a 10% increase in unemployment claims from the same quarter in the previous calendar year, if those states (1) express a commitment to maintain and strengthen access to unemployment compensation and (2) ease benefit requirements, such as waiting periods to receive benefits and job search requirements.

What this means for you is that each state now has a financial incentive to change its unemployment law (possibly through an executive order by the governor or by an act of the state legislature) to ease unemployment requirements on employees. Presumably, most states will require employers to provide notice of the availability of unemployment benefits at the time of termination and will also ease some of the waiting period or job search requirements in state law.

The bottom line for employers is that your state's unemployment laws may be changing, which may also change your responsibilities under state law. Check with the websites for the state department of labor or department of employment security in the state where your employees work to see if your state's law has been changed or contact your legal counsel to ask about changes in the law.

16. If my employee has a spouse at home to watch children, do I have to allow EPSLA leave or EFMLEA leave?

The FFCRA provides that an employee is entitled to leave if the "employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable" due to COVID-19 related reasons. A "child care provider" is someone who receives compensation for providing child care services on a regular basis.

In the recently updated Families First Coronavirus Response Act: Questions and Answers, the Department advised employers to seek the following information from employee's seeking leave: the employee's name, qualifying reason for leave, a statement that the employee is unable to work (including telework) due to that qualifying reason and the dates(s) for which the leave is requested. The Department also suggested that employers obtain sufficient proof of the closure of school, place of care or the unavailability of the child care provider.

Other than advising an employer to obtain a statement from the employee that the employee is unable to work, the Q&A did not provide any further guidance on whether and how an employee must establish the "need for leave." It is likely that an employee will be entitled to the leave even if a spouse is at home to care for the child.

17. Can an employee take 80 hours of paid sick leave for a self-quarantine and then another amount of paid sick leave for another reason provided under the EPSA?

No. An employee may take up to two weeks—or ten days— (80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which an employee receives paid sick leave is capped at 80 hours under the EPSLA.

18. If an employee is home with a child because the child's school or place of care is closed, or child care provider is unavailable, is the employee eligible for paid sick leave, expanded family and medical leave, or both?

An employee may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. An employee may take both paid sick leave and expanded family and medical leave to care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The EPSLA provides for an initial two weeks of paid leave. This period covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the EFMLEA unless the employee chooses to use existing vacation, personal, or medical/sick leave under the employer's policy. After the first ten workdays have elapsed, the employee will receive 2/3 of the employee's regular rate of pay for the hours the employee would have been scheduled to work in the subsequent ten weeks under the EFMELA.

An employee can only receive the additional ten weeks of expanded family and medical leave under the EFMLEA for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

19. Can an employer deny employees paid sick leave if the employer authorized paid leave for a reason identified in the EPSLA prior to the Act going into effect?

No. The EPSLA imposes a new leave requirement on employers that is effective beginning on April 1, 2020.

20. Is all leave under the FMLA now paid leave?

No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days.

21. Are the paid sick leave and expanded family and medical leave requirements retroactive?

No.

22. How does an employer calculate whether an employee has "been employed for at least 30 calendar days by the employer" for purposes of EFMLEA?

An employee is considered to have been employed by the employer for at least 30 calendar days if the employee was on the employer's payroll for the 30 calendar days immediately prior to the day the employee's leave would begin.

Employers must also count the hours a temporary employee worked prior to the employee being hired on a full-time basis toward this 30-day eligibility period.

23. What documentation should I ask for when my employee requests paid sick leave under the EPSLA or EFMLEA leave?

An employer must require an employee seeking leave to provide basic information such as the employee's name, qualifying reason for leave, a statement that the employee is unable to work (including telework) due to that qualifying reason and the dates(s) for which the leave is requested. The employer should obtain appropriate documentation as well, such as a copy of the relied upon quarantine or isolation order related to COVID-19 or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19.

The Department of Labor urges all employers who intend to claim a tax credit under the FFCRA for payment of sick leave wages to retain this documentation in their records. Employers are also urged to consult all applicable IRS forms, instructions, an information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.

24. What documentation should I ask for when my employee takes expanded family and medical leave to care for his child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19?

In addition to obtaining the basic information, such as the employee's name, qualifying reason for leave, a statement that the employee is unable to work (including telework) due to that qualifying reason and the dates(s) for which the leave is requested, an employer should require an employee to provide appropriate documentation to support the request for leave. The Department of Labor suggests that a notice of closure that has been posted on a government, school or day care website, a newspaper notice or an email from an employee or official of the school, place of care, or child care provider would be sufficient.

The Department of Labor urges all employers who intend to claim a tax credit under the FFCRA for payment of sick leave wages to retain this documentation in their records. Employers are also urged to consult all applicable IRS forms, instructions, an information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.

25. Can employees using EPSLA or EFMLEA leave take the leave intermittently or work on a reduced leave schedule?

In some circumstances, yes – if the employer agrees. In the recently updated Families First Coronavirus Response Act: Questions and Answers, the Department of Labor indicated its support for voluntary arrangements that combine telework with intermittent leave.

The DOL advised that an employee who is unable to work his or her normal schedule (including telework) can use EPSLA leave and EFMLEA leave intermittently while teleworking if the employer agrees. Additionally, if an employee is prevented from teleworking his or her normal hours because the employee needs to care for the employee's son or daughter whose school or place of care is closed, or childcare provider is unavailable, because of COVID-19 related reasons, the employee can take expanded family medical leave intermittently while teleworking if the employer agrees. Intermittent leave can be taken in any increment agreed upon by the employer and employee. The Department of Labor provides an example of an agreed upon 90-minute increment and advised that under such an agreed upon arrangement, an employee could telework from 1:00pm to 2:30pm, take leave from 2:30pm to 4:00pm and then return to teleworking.

26. What if telework is not possible? Can an employee take EPSLEA leave intermittently while sometimes working at the office or worksite?

It depends. Unless the reason the employee is taking EPSLEA sick leave is due to the need to care for the employee's child whose school or place of care is closed, or childcare provider is unavailable, the employee must take the sick leave in full-day increments and must continue to take the leave until the employee either uses all of the paid sick leave or the employee no longer has a qualifying reason for taking paid sick leave.

The Department of Labor explained the limitation on intermittent leave was due the desire to keep an individual who is sick or possibly sick with COVID-19 or caring for someone who is sick or possibly sick with COVID-19 from coming to the workplace to spread it to others and spreading the virus to others.

However, because employees who are taking leave to care for a child who is at home due to a school or place of care closure or the unavailability of a child care provider due to COVID-19 are not sick or caring for someone who is sick with COVID-19, those employees can work intermittently at the office or worksite, if the employer agrees. The paid sick leave must be taken in full day increments, unless the employer agrees to lesser increments. For example, an employee who reports to the office on Tuesdays and Thursdays, could take paid sick leave on Mondays, Wednesdays and Fridays to care for the employee' s child.

27. Are employees eligible to take expanded family and medical leave intermittently while the employees' children's school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if the employee is not teleworking?

Yes. However, the employer must authorize the leave. Intermittent expanded family and medical leave should be permitted only upon the employer's agreement to an updated work schedule.

The DOL has confirmed that it will support voluntary agreements between an employer and its employees allowing for intermittent leave on a day-by-day basis.

28. If an employer closed a worksite prior April 1, 2020 (the effective date of the FFCRA), can employees still obtain paid sick leave or expanded family and medical leave?

No. If an employer closed and ceased paying employees prior to April 1, 2020 (the effective date of the FFCRA) you because it does not have work for its employees, employees will not get paid sick leave or expanded family and medical leave. However, employees may be eligible for unemployment insurance benefits.

Importantly, if an employer is paying employees pursuant to a paid leave policy or State or local requirements, employees will not be eligible for unemployment insurance.

29. If an employer closes on or after April 1, 2020 (the effective date of the FFCRA), but before employees are on leave, will employees still be eligible for paid sick leave and/or expanded family and medical leave?

No. If an employer closes after the FFCRA's effective date and employees are not yet on leave, employees will not get paid sick leave or expanded family and medical leave.

30. If an employer closes while employees are on paid sick leave or expanded family and medical leave, what happens?

If an employer closes while employees are on paid sick leave or expanded family and medical leave, the employer must pay for any paid sick leave or expanded family and medical leave used by employees prior to the closing. As of the date an employer closes, employees are no longer entitled to paid sick leave or expanded family and medical leave.

31. If an employer remains open for business, but furloughs employees on or after April 1, 2020 (the effective date of the FFCRA), are employees entitled to receive paid sick leave or expanded family and medical leave?

No. If an employer furloughs its employees because it does not have enough work or business, employees are not entitled to then take paid sick leave or expanded family and medical leave.

32. If an employer closes on or after April 1, 2020 (the effective date of the FFCRA), but notifies employees that it will reopen at some time in the future, are employees entitled to paid sick leave or expanded family and medical leave?

No. If the employer closes, employees are not entitled. Further, if an employer closes, even for a short period of time, employees are not entitled to take paid sick leave or expanded family and medical leave.

33. If employees' scheduled work hours are reduced, can employees use paid sick leave or expanded family and medical leave to make up the difference?

No. If an employer reduces work hours because it does not have work for you to perform, employees cannot use paid sick leave or expanded family and medical leave to make up for the hours employees are no longer scheduled to work.

34. Can employees collect unemployment insurance benefits for time paid pursuant to emergency paid sick leave and/or expanded family and medical leave?

No. If an employer provides paid sick leave or expanded family and medical leave, employees are not eligible for unemployment insurance. However, each State has its own unique set of rules; and DOL recently clarified additional flexibility to the States (UIPL 20-10) to extend partial unemployment benefits to workers whose hours or pay have been reduced.

35. If employees choose to take paid sick leave or expanded family and medical leave, must the employer continue my health coverage? If employees remain on leave beyond the maximum period of expanded family and medical leave, does the employee have a right to keep health coverage?

If an employer provides group health coverage that employees have elected, the employees are entitled to continued group health coverage during expanded family and medical leave on the same terms as if the employees continued to work. If employees are enrolled in family coverage, the employer must maintain coverage during your expanded family and medical leave. Employees must generally continue to make any normal contributions to the cost of your health coverage. See WHD Fact Sheet 28A: https://www.dol.gov/agencies/whd/fact-sheets/28a-fmla-employee-protections.

If employees take paid sick leave, the employer must continue health coverage. Under the Health Insurance Portability and Accountability Act (HIPAA), an employer cannot establish a rule for eligibility or set any individual employee's premium or contribution rate based on whether the individual employee is actively at work (including whether the individual is continuously employed), unless absence from work due to any health factor (such as being absent from work on sick leave) is treated, for purposes of the plan or health insurance coverage, as being actively at work.

36. Can employees utilize the employer's preexisting leave entitlements and FFCRA paid sick leave and expanded family and medical leave concurrently for the same hours?

No. If employees are eligible to take paid sick leave or expanded family and medical leave under the FFCRA, as well as paid leave that is already provided by the employer, unless the employer agrees employees must choose one type of leave to take. Employees may not simultaneously take both. However, an employer can allow employees to supplement the amount received from paid sick leave or expanded family and medical leave under the FFCRA, up to your normal earnings, with preexisting leave.

37. May an employer supplement or adjust the pay mandated under the FFCRA with paid leave that employees may have under my paid leave policy?

If employees choose to use existing leave provided by the employer, then the answer is yes. However, because paid sick leave and expanded family medical leave under the FFCRA is in addition to employees' preexisting leave entitlements, including Federal employees, the answer is no. Under the FFCRA, employees may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee's normal earnings.

Employers are not required to permit an employee to use existing paid leave to supplement the amount the employee receives from paid sick leave or expanded family and medical leave. Employers may not claim, and will not receive tax credit, for such supplemental amounts.

38. May employers require an employee to supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?

No. Under the FFCRA, only the employee may decide whether to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. The employee would have to agree to use existing paid leave under your paid leave policy to supplement or adjust the paid leave under the FFCRA.

39. If an employer pays employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can the employer do so and claim a tax credit for the entire amount paid to them?

Employers may pay employees more than what is required under the FFCRA, but cannot claim, and will not receive tax credit for, those amounts above the FFCRA's statutory limits.

40. Can an employer that is part of a multiemployer collective bargaining agreement, satisfy its obligations under the Emergency Family and Medical Leave Expansion Act through contributions to a multiemployer fund, plan, or program?

Employers may satisfy obligations under the EFMLEA by making contributions to a multiemployer fund, plan, or other program in accordance with existing collective bargaining obligations. These contributions must be based on the amount of paid family and medical leave to which each employee's is entitled under the Act based on each employee's work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, an employer may also choose to satisfy its obligations under the Act by other means, provided they are consistent with bargaining obligations and any current collective bargaining agreement(s).

41. Are contributions to a multiemployer fund, plan, or other program the only way an employer that is part of a multiemployer collective bargaining agreement may comply with the paid leave requirements of the FFCRA?

No. Both the EPSLA and the EFMLEA provide that, consistent with its bargaining obligations and collective bargaining agreement, an employer may satisfy its legal obligations under both Acts by making appropriate contributions to such a fund, plan, or other program based on the paid leave owed to each employee. However, the employer may satisfy its obligations under both Acts by other means, provided they are consistent with its bargaining obligations and any current collective bargaining agreement(s).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.