As employers try to comply with the new Families First Coronavirus Response Act’s (FFCRA) paid sick leave and expanded family and medical leave requirements, the Department of Labor has thrown them a curveball by quietly changing the answers to some of its Guidance about the FFCRA as well as adding 19 more FAQs to its prior compendium. These changes and additions focus on a) how an employer’s existing PTO policy may interact with the FFCRA, b) the definition of first responder, and c) the treatment of employees currently on non-FFCRA leaves of absence. Here are some highlights:

Paid Sick Leave Must Be Provided in Addition to Any PTO An Employee Has, But Expanded Family and Medical Leave Can be Taken Concurrently With PTO

The DOL changed its answers to FAQs 31 – 33 of the Guidance. As it now stands, if an employee takes paid sick leave under the FFCRA, the employee cannot be forced to use his or her regular PTO time before or concurrently with any FFCRA required paid sick leave.

However, in the case where the employee is taking FFCRA paid sick leave for a qualifying reason that only entitles the employee to two-thirds of the employee’s regular pay, the employer and the employee can agree to allow the employee to supplement that paid sick leave with the employee’s PTO time to raise the amount paid to the employee’s normal rate of pay. Note that employers are only entitled to a tax credit for the amount required to be paid under the FFCRA, which in this case would be two-thirds pay, not to exceed $200, for 10 days.

On the other hand, an employer may require an employee taking expanded family and medical leave under the FFCRA, to take such leave concurrently with any PTO the employee has available under the employer’s policies. If an employer chooses to do so, the employee would start taking the PTO after the first two weeks of FFCRA expanded family and medical leave, and the employer must pay the employee the full amount they are entitled to under the PTO policy, but no less than two-thirds of the employee’s regular pay. After the employee exhausts his or her regular PTO time while on expanded family and medical leave, the employee will continue to be entitled to two-thirds pay for the rest of the FFCRA leave.

The Definition of First Responder Has Been Slightly Expanded

In changing its answer to FAQ 57 of the Guidance, the DOL added “child welfare workers and service providers” to the definition of “first responders.” The revision makes the FAQ consistent with the temporary regulations announced on April 1. First responders are among those who can be exempted from coverage under the FFCRA.

Employees Currently On Leaves of Absence May Be Entitled to FFCRA Leave

Of the new FAQs (i.e., not amendments to earlier FAQs), FAQ 77 provides that employees who are currently on voluntary leaves of absence may be able to end their leaves and return to work and go onto FFCRA paid sick leave or expanded family and medical leave if a qualifying reason prevents them from working. However, employees who are currently on mandatory leaves of absence cannot do so because the mandatory leave, not a qualifying reason, is what prevents them from working.

The DOL also clarified that even though it has issued a limited stay of enforcement until April 17, employers are still expected to be in compliance now. Those who violate the FFCRA can be subject to retroactive enforcement actions by the DOL.

Compliance is still key. Therefore, employers with questions should contact any of the Dykema labor and employment attorneys for assistance in conforming to the FFCRA.
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