DOL Updates Guidance on Interplay of Employer-Provided Leave and Leave under the EPSLA and EFMLEA

In a recent update to the DOL’s guidance regarding paid leave under the EPSLA and EFMLEA, which can be found here https://www.dol.gov/agencies/whd/pandemic/ffcra-questions, the DOL revised its responses to frequently asked questions pertaining to the interplay between employee leave under the EPSLA and EFMLEA and leave provided under employer policies.  The revised responses clarify a few issues but also highlight a conflict with and within the final regulations themselves, which were issued by the DOL and published in the Federal Register on April 6, 2020.

First, the DOL reiterates that an employer may not use the paid leave mandated under the EPSLA to satisfy leave payments that an employee is already entitled to under employer-provided policies.  Employers may not require an employee to use employer-provided leave before taking leave under the EPSLA, nor can they require employees to use such existing employer-provided leave concurrently with leave under the EPSLA.  However, if both the employee and the employer agree, an employee may use employer-provided leave entitlements to supplement the amount the employee receives under the EPSLA, up to the employee’s normal earnings.  In such situations, the employer is limited to a tax credit for the amount due under the EPSLA but will not receive a credit for amounts paid that are not required under the EPSLA and/or that exceed the EPSLA’s limits.

Second, and where the conflict with the regulations and within the regulations themselves come in, the DOL’s updated responses to the frequently asked questions state that, during the first two weeks of unpaid EFMLEA leave, the employee may not simultaneously take paid sick leave under the EPSLA and preexisting employer-provided leave, unless the employer agrees to allow the employee to do so in order to supplement the amount received from paid sick leave up to the employee’s normal earnings.  However, the response goes on to state that after the first two weeks of unpaid leave under EFMLEA have been exhausted, an employee may elect, or be required by her/his employer, to take employer-provided leave and the remaining EFMLEA leave at the same time.

The DOL’s updated guidance expounds further, stating affirmatively that an employer may require an employee to take paid leave s/he may be entitled to under employer-provided policies concurrently with EFMLEA leave after the first two weeks of unpaid leave are exhausted.  More particularly, the DOL states that after the first two workweeks of leave under the EFMLEA, an employer may require that an employee take concurrently for the same hours leave under the EFMLEA and employer-provided leave that the employee has available.

However, in the final regulations published in the Federal Register on April 6, 2020, the DOL supports the above in two regulations, but contradicts them in another.  Specifically, in Sections 826.23(c) and 826.24(d), the regulations state that an employee may elect or may be required by her/his employer to use employer-provided leave concurrently with EFMLEA leave.  But, in Section 826.70(f), the regulations state:

After the first two weeks of leave, Expanded Family and Medical Leve is paid at two-thirds the Eligible Employee’s regular rate of pay, up to $200 per day per Eligible Employee.  Because this period of Expanded Family and Medical Leave is not unpaid, the FMLA provision for substitution of the Employee’s accrued paid leave is inapplicable, and neither the Eligible Employee nor the Employer may require the substitution of paid leave.  However, Employers and Eligible Employees may agree, where Federal and state law permits, to have paid leave supplement pay under the EFMLEA so that the Employee receives he full amount of his or her normal pay.  For example, an Eligible Employee and Employer may agree to supplement the Expanded Family and Medical Leave by substituting one-third hour of accrued vacation leave for each hour of Expanded Family and Medical Leave.

While Section 826.70(f) is in direct conflict with Sections 826.23(c) and 826.23(d), as well as the DOL’s FAQ guidance, the safer path to take may be to follow the provisions of 826.70(f). That section seems to more consciously contemplate the fact that EFMLEA leave is paid, while all other types of leave under the FMLA are unpaid. It is because of that distinction that 826.70(f) precludes an employer from requiring the substitution of paid leave during such periods of already-paid EFMLEA leave. The Kullman Firm will, however, keep clients informed should the DOL clarify this apparent inconsistency.

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Since legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.