DOL FAQs Clarify FFCRA Paid Leave Issues, Including Concurrent Use of Leave

The DOL’s Wage and Hour Division has posted nine more FAQs regarding paid sick and emergency childcare leave under the Families First Coronavirus Response Act (FFCRA) (see our Checkpoint article). Most of the additional FAQs offer details and clarifications on the calculation of paid leave, including how to compute 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. Q/A-86, however, addresses how an employer’s other leave benefits—including vacation and PTO benefits—interact with paid leaves under the FFCRA, clarifying lingering questions about the concurrent use of leave. The DOL’s temporary regulations (see our Checkpoint article) offered contradictory views regarding an employer’s ability to force employees to substitute existing paid leave benefits for emergency childcare leave. Later corrections deleted the regulation prohibiting such substitutions, however, and new Q/A-86 discusses when an employer may require an employee to use existing leave under a company’s leave policy concurrently with FFCRA leave, and when employees can only be offered the choice to supplement that leave.

Referencing Q/A-32, Q/A-86 explains that an employer may not require that employer-provided paid leave run concurrently with (i.e., 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 place of care is closed (or childcare provider is unavailable) due to a COVID-19-related reason may be required to run concurrently with paid FFCRA emergency childcare leave. Q/A-86 explains that 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. 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 may not 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, or the employee may choose, but may not be required, to use paid leave under the employer’s leave policy concurrently with the unpaid leave.

EBIA Comment: Q/A-86 clarifies an uncertainty left unresolved by the DOL’s earlier FAQs, in part because of the contradictory provisions in the initial temporary regulations, but also because of the earlier FAQs’ terminology. Stating that an employee’s existing paid leave entitlements will be paid “concurrently” with other leave does not unambiguously indicate whether leave relating to the same day is a supplement or substitute. Q/A-86 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 only be used as a supplement. For more information, see EBIA’s Group Health Plan Mandates manual at Sections XVI.D (“Expanded FMLA Emergency Childcare Leave”) and XVI.E (“Emergency Paid Sick Time”) and EBIA’s Fringe Benefits manual at Section XXII.G (“Other Laws Affecting Vacation/PTO Plan Design”), which is currently being updated for COVID-19-specific issues.

Contributing Editors: EBIA Staff.