Return to Work and the FFCRA


Now that workplaces are opening back up, one consequence may be that some employees will take advantage of their paid sick leave and emergency FMLA leave entitlements because their children’s schools are still closed.  As a refresher, for private employers with less than 500 employees and all public employers, employees (with some limited exceptions) are entitled to 2 weeks (up to a maximum of 80 hours) of paid sick leave and up to 12 weeks of emergency FMLA leave – for a maximum of 12 weeks of leave. There are multiple qualifying reasons for PSL, including that your employee needs to take care of a child whose school or childcare is closed due to COVID-19.  That is the sole reason they can seek emergency FMLA leave, however.  One qualification on this entitlement is that leave for this reason is to be paid at 2/3 of the employee’s wage or salary (up to certain caps).

The DOL recently issued guidance on how to coordinate employer-provided paid leave with the FFCRA leave entitlements.  Basically, the FFCRA’s sick leave provision is treated differently from its emergency FMLA provision.  If an employee requests PSL, you cannot make them take your employer-provided paid leave at the same time (although they can elect do so).  You can, however, make them take employer-provided paid leave – typically vacation or PTO but not sick or medical leave – if they take emergency FMLA leave.  In that event, the employee would receive their full pay, until the employer-provided paid leave is exhausted.  After that point, the employee would be entitled to 2/3 pay as provided for under the FFCRA.  Regardless, the employer is only entitled to a 2/3 tax credit for this leave.

Stay safe and keep the course.  And please let us know if we can help.

Thanks, Jack, Elizabeth and Jim

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