January 31, 2023

Volume XIII, Number 31


January 31, 2023

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January 30, 2023

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Department of Labor’s Families First Corrections Fix Contradiction on Concurrent Leave

On April 10, the Department of Labor published corrections to its regulation on the Families First Coronavirus Response Act and fixed an internal inconsistency regarding concurrent use of employer-provided paid time off and paid expanded family medical leave under the Act.

We previously covered the initial DOL rule on Families First here.  The Families First Act provides up to 12 weeks of paid leave for employees of small to mid-sized businesses for certain coronavirus-related reasons.

The corrections delete a section of the regulation that prohibited employers from requiring employees to use employer-provided paid time off during paid periods of leave under the Emergency Family Medical Leave Expansion Act (“Emergency Family Medical Leave”).  That section of the initial regulation contradicted other portions that purportedly allowed employers to require employees to use employer-provided paid time off and paid Emergency Family Medical Leave concurrently.

The corrections fix the inconsistency.  As revised, the regulation allows employers to require employees to use employer-provided paid time off and paid Emergency Family Medical Leave concurrently, except in certain circumstances.

First, the employer may not require concurrent use of employer-provided paid time off if the employee is already using Emergency Paid Sick Leave under the Act and Emergency Family Medical Leave simultaneously.  In practice, this will generally mean the employer cannot require concurrent use of PTO during an employee’s first two weeks of leave.

Second, an employer may only require an employee to use paid time off concurrently if that employer-provided leave could otherwise be used to care for a child.  For example, if an employer has a general paid time off policy that allows an employee to take paid leave for any reason, then the employer can require concurrent use of that leave.  But if an employer policy provides leave only for certain reasons that do not involve care of a child (i.e. personal illness), then the employer cannot require an employee to use that type of leave concurrently with Emergency Family Medical Leave.

The corrections allow employers more options to require employees to exhaust employer-provided paid time off at the same time that they take leave under the Families First Act.  For some employers, this option may be appealing to prevent employees from having access to abnormally large amounts of paid time off because of the aggregation of the Families First Act leave provisions and employer policies.

Employers should note that if they require concurrent use of employer-provided paid time off, they may only claim tax credits under Families First for the leave required under the Act.  So, if an employee uses employer paid time off and Families First leave concurrently, the employer may seek reimbursement for 2/3 of the employee’s rate of pay, up to $200 per day, but not for the additional 1/3 of an employee’s pay that would be due under the employer’s own policy.

Clarification Regarding Partial Weeks under Emergency Family Medical Leave

 The corrections also clarify that an employer may only charge an employee for partial weeks of Emergency Family and Medical Leave when the employee takes intermittent leave.

The corrections provide an example.  If an employee normally works 40 hours per week, and takes intermittent leave for three hours per day during a week for 15 hours total, then that employee may only be charged for 37.5 percent of a week of leave.  Thus, when an employee takes intermittent leave, the employee may use that leave over a period of time that extends longer than 12 calendar weeks, because the employee should only be charged in increments based on how many hours of leave she actually uses.

As a reminder, an employer has no duty to allow an employee to use intermittent leave under the Act.  Intermittent leave may be used only if the employer and employee agree.

Copyright © 2023, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 104

About this Author

Reilly C. Moore Labor & Employment Hunton Andrews Kurth Richmond, VA

Reilly counsels employers on all aspects of labor and employment law.

Reilly has defended clients in a variety of matters, including Title VII employment discrimination claims, Family Medical Leave Act claims, Fair Labor Standards Act class actions and state law public policy claims. Reilly also has extensive experience representing clients in front of government agencies, including the Equal Employment Opportunity Commission and the Virginia Employment Commission. Reilly has assisted clients in managing union organizing activity and counseling management on...

Michael J. Mueller Issues & Appeals Hunton Andrews Kurth Washington, DC

Mike has more than 30 years of experience with class actions and other complex cases, including wage-hour class actions, consumer products class actions, racketeering (RICO), and labor disputes with unions and employee groups.

He has tried more class actions to verdict than perhaps any other attorney in the country, including the defense of nine private class actions and a Secretary of Labor enforcement action against a Fortune 100 food manufacturer.

Focusing on clients who create and sell goods and services, Mike helps his clients to avoid litigation and, if...

Kevin J. White Employment Lawyer Hunton AK

Kevin co-chairs the firm’s labor and employment team and  has a national practice that focuses on complex employment litigation and employment advice and counseling.

In particular, Kevin has extensive experience representing clients in the retail, energy and financial services industries in discrimination class action litigation, governmental agency systemic discrimination investigations, and wage and hour litigation. Other significant aspects of his practice include conducting internal investigations, advising clients regarding executive...

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