In its most recent questions and answers, the Department of Labor addresses the circumstances in which employers may require employees to use existing leave and how existing leave works in conjunction with EFMLA and EPSL under the Families First Coronavirus Response Act. This information is found in FAQ 86, with reference to previous guidance at Questions 31-33.
Let’s take EFMLA first. EFMLA is available when an employee is unable to work or telework because the employee must care for a child whose school or place of care is closed or unavailable because of the COVID-19 pandemic. There are two components to EFMLA: (1) two weeks of unpaid leave and (2) ten weeks of EFMLA paid at 2/3 of the employee’s regular rate.
How does an employee receive income during the two weeks of unpaid EFMLA? There are three options:
- The employee can choose to take EPSL during the two weeks of EFMLA, which would be paid at 2/3 of the employee’s regular rate.
- The employee can choose to use existing leave under the employer’s policy.
- If the employer and employee agree, the employee can use EPSL and supplement the EPSL with existing leave available under the employer’s policy so that the employee receives 100% of her regular pay.
The employee gets to decide what, if any, paid leave to use during the two weeks of unpaid EFMLA, except that combining leave is only available by mutual agreement. The employee could even decide to use EPSL after the total 12 weeks of EFMLA is exhausted, which would result in 14 weeks of leave (2 weeks of unpaid EFMLA + 10 weeks of paid EFMLA + 2 weeks of EPSL).
There are also options when it comes to the 10 weeks of paid EFMLA that will result in an employee receiving more than the 2/3 pay provided via paid EFMLA.
- The employer may require that an employee use existing leave concurrently with the 10 weeks of paid EFMLA, so long as the leave is available for the school/child care reason that is the basis for EFMLA. If an employer requires an employee to use existing leave concurrently with EFMLA, the employer must pay the employee his or her full pay during the leave until the existing leave is exhausted. The employer may still only receive a tax credit for the 2/3 pay required by the FFCRA, subject to the daily and aggregate caps. If the employee has EFMLA remaining after exhausting existing leave, the leave would be paid at 2/3 of the employee’s regular rate, subject to the daily and aggregate caps.
- An employer and employee may also agree to supplement paid EFMLA (paid at 2/3 the employee’s regular rate) with existing leave, up to 100% of the employee’s pay.
Regarding EPSL, an employer may not require an employee to use existing leave concurrently with EPSL or mandate that existing leave be used before EPSL. However, an employer and employee may agree that an employee will use existing leave to supplement EPSL (i.e., EPSL is for a reason that is paid at 2/3 of the employee’s regular rate and existing leave is used to supplement the employee’s pay up to 100%).