The Department of Labor (DOL) has been updating it’s guidance on the Families First Coronavirus Response Act (FFCRA) for employers as new issues come up in the implementation of this new law. One recent update clarified in what situations an employee may be able to take employer-provided paid time off concurrently with certain FFCRA leaves.

According to the DOL, paid time off that is available to an employee under company policy and allows the employee to take time off for his/her child or children because their school or place of care is closed due to COVID-19 may run concurrently with emergency paid family and medical leave (EFMLA) under FFCRA.

This would mean that — similar to traditional FMLA — employer-provided leave and EFMLA could cover the same hours. In this situation, the employee would receive his/her full pay until such time as paid leave provided by the employer under company policy was exhausted. After that point, should the employee still have a need to take leave to care for a child or children due to closure or unavailability of school or child care, the employee would be entitled to two-thirds pay under FFCRA.

Additionally, the DOL makes clear that if an employer allows (or requires) employer-provided paid leave to run concurrently with EFMLA, they may only take advantage of the tax credits under FFCRA for wages paid at two-thirds of the employee’s regular rate of pay, up to $200 per day or $10,000 in total. The employer cannot claim the additional employer-provided leave for the tax credits.

In contrast, the DOL has said that employers cannot require an employee to use available paid sick leave under company policy concurrently with emergency paid sick leave (EPSL) under FFCRA. EPSL is intended to be additional to any paid leave the company otherwise provides to employees. While the employer cannot require it, the employer and employee may agree to allow the leaves to run concurrently.

families first coronavirus response act

What about where the two types of FFCRA leave can interact — the first two weeks of EFMLA? The DOL has advised that during the first two weeks of EFMLA (which is unpaid), an employee may use EPSL or paid leave otherwise provided by the employer, but not both. Again, EPSL is intended to be in addition to any paid leave otherwise provided by the employer. However, if the employer agrees, the employer may supplement (and run concurrently) EPSL with employer-provided leave up to the employee’s full pay. After that initial two weeks, the discussion above regarding EFMLA would apply.

Bottom line – the employer may require employees to use EFMLA and employer-provided leave concurrently. However, during the first two weeks of EFMLA (when EPSL may be used) or for any other reason when EPSL applies, the employer and employee must agree to allow the two to run concurrently.

Still confused about your obligations under FFCRA? Nevada Association of Employers (NAE) has compiled resources, including fact sheets, webinars, and more, explaining this new law and what it means for employers. NAE members can view and download these resources from the Member Portal. Not a NAE member? Join today to begin enjoying the benefits of NAE membership.