Wednesday, April 22, 2020

DOL clarifies interplay between PTO and FFCRA Leave

After a little bit of a lull, DOL updated its Q&A page with a few new tidbits. Question 86 specifically addresses paid time off (I'll just use "PTO" to encompass PTO, vacation, sick, etc.) and its interaction with FFCRA leave. A few scenarios arise:

Emergency Paid Sick Leave (EPSL)
Easy enough - "An employer may not require employer-provided paid leave to run concurrently with—that is, cover the same hours as—paid sick leave under the Emergency Paid Sick Leave Act."

Emergency Family and Medical Leave Act (EFMLA)
Not official use.
A little more complicated - Yes, "an employer may require that any paid leave available to an employee under the employer’s policies to allow an employee to care for his or her child or children because their school or place of care is closed (or child care provider is unavailable) due to a COVID-19 related reason run concurrently with" EFMLA. But! The employer must pay the employee 100% of their pay (whereas EFMLA alone only requires 2/3 pay), and the employer will still only receive a tax credit for that required 2/3. Finally, the employer and the employee may agree to use PTO to supplement the 2/3 pay and instead provide full pay.

* Reminder, that 2/3 pay is also capped at $200/day, $10,000 total.

EPSL and EFMLA together

The first two weeks of EFMLA are unpaid (subject to the use of PTO above). The employee may choose (but the employer may not require) the employee to use their two weeks of EPSL during the first two weeks of EFMLA. The EPSL pays out at 2/3 pay. If the employee runs out of EPSL in the first two weeks, then the employee may choose (bit, again, the employer may not require) to use PTO provided for under the employer's policy (so long as that leave would be available to stay home to care for one's child).

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