DOL Issues Corrections for the Families First Coronavirus Response Act

Compliance Connection

DOL Issues Corrections for the Families First Coronavirus Response Act

April 14, 2020

Employers may require employees to use leave prior to paid leave under the Families First Coronavirus Response Act (FFCRA)

When the FFCRA first came about, the regulation barred an employer from requiring an employee to exhaust all leave, vacation, and Paid Time Off hours prior to paying the mandated paid leave under the Emergency Family Medical Leave Expansion Act - EMFLEA (a part of the FFCRA).  Interestingly, this requirement contradicted other portions by stating employees might be required to use these benefits concurrently with the EMFLA.

 

Last Friday, April 10, 2020, the Department of Labor (DOL) published corrections to the FFCRA in the Federal Registry (click here)

 

When first implemented, the last paragraph of Section G (click here) stated “Because this period of expanded family and medical leave is paid, the FMLA provision for substitution of the employee's accrued paid leave is inapplicable, and neither the employee nor the employer may require the substitution of paid leave.”  However, the DOL corrections scrubbed this entire paragraph, allowing employers to require the use of paid leave offered by the company.

 

However, there are a few things employers must remember:

Existing time off policies must allow the use of the time for child care situations.

If the employee uses benefit hours, the employer may not claim these expenses for the tax credits offered through the FFCRA.

 

Clarification for partially worked weeks

Even though the FFCRA does not require an employer to allow intermittent leave, some companies find granting this creates an opportunity to keep the employee partially employed, lessening the strain and cost for the organization.  However, if the employer and employee agree on an intermittent leave arrangement, the Department of Labor clarifies how the “weeks” must be interpreted when calculating protected leave.

 

If an employee utilizes intermittent hours under the EFMLA, an employer may only require the employee use a partial week towards the 12 weeks of protection.

 

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The above information was obtained from the National Law Review and the Federal Register.