Proskauer - Law and the Workplace

On April 10, 2020, the Department of Labor (“DOL”) released corrections to the regulations implementing the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”) provisions of the Families First Coronavirus Response Act (“FFCRA”).

We have written in detail about the DOL’s FFCRA regulations in a recently-updated post here.  

Corrections to the regulations address, for the most part, section and subsection heading, numbering and referencing issues.  A previous citation to April 2, 2020 as the effective date of the temporary rule is corrected to reflect the actual effective date – April 1, 2020.

The most significant correction addresses an area of “murkiness” we pointed out in our prior post on the regulations.  As we wrote, the regulations are clear that “an employer may not require an employee to use provided or accrued paid vacation, personal, medical or sick leave before or concurrently with EPSLA leave. This is because EPSLA leave is in addition to, not a substitute for, an employee’s other leave entitlements. An employer and employee may mutually agree that the employee will use preexisting leave entitlements to supplement his/her paid sick leave, up to the employee’s normal earnings.”

With respect to the use of other leave concurrently with EFMLEA leave, the regulations made clear that an employee may elect to use existing leave entitlements concurrently with expanded family and medical leave under the EFMLEA, but the regulations – in 29 C.F.R. §§ § 826.160(c)(1) and 826.70(f) – contained contradictory guidance regarding whether an employer may require an employee to use existing leave concurrently.* The DOL has recognized this inconsistency and in its revised regulations deleted § 826.70(f) completely. With this revision, the regulations are clear that “an Eligible Employee may elect to use, or an Employer may require that an Eligible Employee use, provided or accrued leave available to the Eligible Employee [] under the Employer’s policies, such as vacation or personal leave or paid time off, concurrently with Expanded Family and Medical Leave.”  29 C.F.R. § 826.160(c)(1).

We will continued to monitor and report on changes and updates to the DOL’s guidance on the FFCRA.

* § 826.70(f) provided that “[b]ecause this period of [EFMLEA] 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.”  This provision was inconsistent with § 826.160(c)(1), which provides that “an Eligible Employee may elect to use, or an Employer may require that an Eligible Employee use, provided or accrued leave available to the Eligible Employee [] under the Employer’s policies, such as vacation or personal leave or paid time off, concurrently with Expanded Family and Medical Leave.”

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