The US Department of Labor (DOL) issued additional frequently asked questions on March 27 to explain how the recently enacted Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Expansion Act (Emergency FMLA) will work in various situations during the coronavirus (COVID-19) crisis.
The DOL FAQs aim to clarify how the 10 days of Emergency Paid Sick Leave for a specific set of COVID-19-related reasons and the 12 weeks of job-protected Emergency FMLA leave for a limited COVID-19 reason, recently enacted as part of the Families First Coronavirus Response Act, interact with an employer’s existing paid leave – specifically, sick time, paid time off (PTO), medical leave, or vacation provided by the employer.
If an employee needs short-term leave for a COVID-19 reason, the employee may choose to use the 10 days of the new Emergency Paid Sick Leave and choose not to use any of their existing employer-provided paid leave. In that case, the employee will receive funds up to the cap allowed under the law ($511/day for certain uses, and $200/day for others) and the employer will receive a tax credit for the amount expended on that leave.
For those employees who earn higher than the maximum caps set by the law, using the Emergency Paid Sick Leave days will not provide them with a full wage replacement. DOL makes clear that such employees may choose instead to use any available existing paid leave, so as to receive a fully paid sick day. The employer will not get a tax credit for the amount expended on such leave. If the employee subsequently requires additional time off for a COVID-19 reason, the employee may then use his or her ten Emergency Paid Sick Leave days. That leave will be capped at the maximum amount permitted under the law and the employer will receive a tax credit for the amount expended.
An employer and employee may mutually agree on a hybrid approach. If an employee wishes to conserve his or her employer-provided paid leave to the greatest extent possible, but would also like to be paid an entire base salary for a given sick day, the employee and employer may jointly agree that the employee will use an Emergency Paid Sick Leave day and also part of an existing sick day to “top off” the payment provided under that leave to allow full pay. For example, if an employee would receive only two-thirds of their normal earnings while on Emergency Paid Sick Leave, the employer may permit the employee to use the employer-provided leave to make up the additional one-third of earnings. The employer would receive a tax credit only for the costs of the Emergency Paid Sick Leave, capped as noted above.
The same rules apply to use of the Emergency FMLA Leave.
DOL’s FAQs clarify that the Emergency Paid Sick Leave days and the Emergency Paid FMLA may be used intermittently only with the agreement of the employer. However, DOL urges employers to be as collaborative and as flexible as possible in these circumstances.
The DOL FAQs clarify the type of documentation an employer may require to support an employee’s use of either Emergency Paid Sick Leave or Emergency Paid FMLA.
The DOL FAQs explain how site closures or furloughs impact employees’ entitlement to leave:
The Emergency Paid Sick Leave and Emergency FMLA are designed as payments for when an employee is on leave from work. If there is no work to go to, there is no entitlement to leave. As DOL notes, in those instances, employees may be entitled to payment from other government programs, such as Unemployment Insurance.
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Michelle Seldin Silverman