As the COVID-19 situation evolves and regulations regarding the pandemic begin to have real-world effects, the federal government is rapidly providing legal clarifications for employers confused by the various new laws.

One of the most important pieces of legislation passed during this pandemic is the Families First Coronavirus Response Act (FFCRA). The FFCRA provided for an emergency expansion to the FMLA (E-FMLA) as well as emergency Paid Sick Leave (PSL) for certain COVID-19 related reasons. As the law was new and vague on certain key issues, the Department of Labor released an FAQ to assist employers in identifying their obligations under the new emergency leave laws (a summary of this FAQ can be found HERE).

The Department of Labor has updated this FAQ to explain the interaction of FFCRA leave and company PTO:

1. The FAQ states that company PTO and PSL may be used concurrently only at the agreement of the employer and the employee: the employer may not unilaterally mandate an employee use both at the same time. Otherwise, an employee is entitled to both forms at leave at full length.

2. An employer may require an employee to use E-FMLA and company PTO concurrently for the full 10 week duration of the E-FMLA if the employer’s PTO allows for time off to care for a child due to the closure of school or place of care. An employer may not alter their PTO to allow for such leave as a means of forcing concurrence.

3. The first 2 weeks of the 10-week E-FMLA leave are unpaid by law. An employee may use paid PTO or PSL leave to supplement as long as the PTO also covers leave for an employee who cares for a child whose school or place of care has been closed down.

Important to note is that, even if E-FMLA and PTO run concurrently, the employer is only entitled to tax credits of up to 2/3 of the employee’s compensation for the E-FMLA (up to $200 daily aggregate limit or $10,000 total aggregate limit). Employers should articulate this leave scheme to employees as soon as possible to make it clear which leaves are available when. This will be beneficial for both employees (who will be able to make informed decisions on leave) and employers (to promote proper organization of leave for tax credit purposes).

You can read the full FAQ HERE.

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