Updates to UNC SOG Blog Post "Highlights of the U.S. Department of Labor's FFCRA Regulations"

Thursday, April 23, 2020

From Diane Juffras at UNC's School of Government: 

I recently published a new blog post on our Coates’ Canons blog: Furloughing Employees During the COVID-19 Crisis. You can find it here.

I also updated my earlier blog post, Highlights of the U.S. Department of Labor’s FFCRA Regulations. The US Dep’t of Labor published some revisions to the FFCRA regulations after their initial publication. Most of them were technical (numbering; change in punctuation), but one is substantive and worth noting. DOL eliminated subsection (f) of new 29 CFR 826.70 in its entirety. Because it was inconsistent with 29 CFR 826.160. Both of these sections were about using employer-provided accrued paid leave at the same time as emergency FMLA leave. The deleted section said that neither employers nor employees could substitute accrued paid leave for emergency FMLA leave. That is true, but it was confusing in light of section 826.160(c), which allows accrued paid leave to run concurrently with emergency FMLA leave.

Eliminating section 826.70(f) now makes clear that the employee has the right to ask to run accrued paid leave concurrently with emergency FMLA leave (after the first 10 days) and employers may require them to run concurrently. But there’s the important thing: when they run concurrently, the employee must be paid the emergency FMLA leave payment of 2/3rds of their regular rate and, in addition, the entire amount of the accrued paid leave. Call it double-dipping, but the employee has earned the accrued paid leave and is entitled to its value in full. From an employer perspective, having accrued paid leave and emergency FMLA leave run concurrently means that employees will have less available paid time off in the future when things return to “normal.” That will be important once local governments are able to get the full range of their services up and running again.

In case you find the double-payment hard to believe, US DOL confirms that this is what is meant on their webpage, Families First Coronavirus Response Act: Questions and Answers:

Question 33: If I am an employer, may I require my employee to take paid leave he or she may have under my existing paid leave policy concurrently with expanded family and medical leave under the EFMLEA?

Yes. After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA, you may require that your employee take concurrently for the same hours expanded family and medical leave and existing leave that, under your policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if your employee (or a covered family member) is not ill.

If you do so, you must pay your employee the full amount to which he or she is entitled under your existing paid leave policy for the period of leave taken. You must pay your employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per workday and $10,000 in the aggregate, for expanded family and medical leave. If your employee exhausts all preexisting paid vacation, personal, medical, or sick leave, you would need to pay your employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per day and $10,000 in the aggregate. You are free to amend your own policies to the extent consistent with applicable law.

You can find my updated blog post here.