Do they have to use existing leave under company policy, or is it solely the employee’s choice?

By Morgan D. Schut

In late April 2020, the Wage & Hour Division of the Department of Labor provided further guidance on when and how an employer may require their employee to use existing leave under company policy and when the choice belongs to the employee. It is first critical to remember that when your employee is requesting leave under the Families First Coronavirus Response Act, they may be requesting leave under one of two ways: (1) Emergency Paid Sick Leave or (2) The Emergency Medical Leave Expansion Act (see link to former post discussing this leave on KKUE’s website).   The full guidance from the Wage & Hour Division can be found at Question 86 here and is summarized below.  We advise companies and employers to reach out to us when an employee applies for the Emergency Family Medical Leave Expansion Act to mitigate future issues with the employee and ensure the employer receives the maximum tax benefits they are entitled to receive. 

(1) The Emergency Paid Sick Leave: This leave is in addition to any existing company policy or leave provided by the employer.  Thus, an employer may not require an employer-provided paid leave to cover the same hours that are paid sick leave under the Emergency Paid Sick Leave Act.  This is an extra two weeks, up to 80 hours, of paid sick leave provided to an employee under the Act that can be reimbursed in full to the employees via tax credits.

(2) The Emergency Family Medical Leave Expansion Act:  This expanded leave allows an employee to take a total of 12 weeks of leave, provided they qualify under the Act.  10 of the 12 weeks are paid under terms of the Act (2/3 of pay; $200/day and $10,000 total reimbursement available to employer), while the first two weeks of leave may be unpaid.  With regard to the first two weeks of unpaid leave provided by this Act, an employee may elect—but may not be required by the employer—to take paid sick leave under the Emergency Paid Sick Leave Act or paid leave under the employer’s plan for the first two weeks of unpaid expanded family and medical leave, but not both. If, however, an employee has used some or all paid sick leave under the Emergency Paid Sick Leave Act, any remaining portion of that employee’s first two weeks of expanded family and medical leave may be unpaid. During this period of unpaid leave under the Emergency Family and Medical Leave Expansion Act, the employee may choose—but the employer may not require the employee—to use paid leave under the employer’s policies that would be available to the employee to take in order to care for the employee’s child or children due to their school or place of care being closed or the child care provider being unavailable due to a COVID-19 related reason concurrently with the unpaid leave.   Regarding the remaining 10 weeks of leave, and distinct from (1) above, an employer may require that any paid leave available to an employee under the employer’s policies to allow an employee to care for his or her child or children because their school or place of care is closed (or child care provider is unavailable) due to a COVID-19 related reason run concurrently with paid expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.  If the employee chooses to exhaust their available options under company policies during leave, the employer will only be reimbursed by tax credits for wages paid at 2/3 of the employee’s regular rate of pay, up to the daily and aggregate limits of $200/day, and $10,000 total. After the employee exhausts their paid leave available from company policies, and assuming the employee is entitled to more Emergency Family Medical Leave time, the employee will receive the remaining paid leave at 2/3 of the employee’s regular rate of pay, that may be reimbursed via tax credit up to $200/day and $10,000 total.  The Wage & Hour Division encourages employers and employees to get creative when possible and provides that if both an employer and employee agree, and subject to federal or state law, paid leave provided by an employer may supplement 2/3 pay under the Emergency Family and Medical Leave Expansion Act so that the employee may receive the full amount of the employee’s normal compensation during the time he or she is on leave. 

Kemp Klein attorneys are available to answer any questions you may have.