COVID-19 Employer Playbook

COVID-19 Paid Leave and Regular FMLA Integration Employees are eligible to take paid sick leave (described in the prior section) regardless of how much leave they may have already taken under the regular FMLA provisions. However, if an employee already used a portion of their 12 work-week maximum under regular FMLA prior to April 1, 2020, their eligibility for COVID-19 paid family leave would be restricted to the number of remaining weeks in their 12 weeks per 12-month FMLA period. The reverse is also true, subject to the restriction that paid family leave is only available until December 31, 2020. Thereafter, only regular FMLA leave may be taken. ”Topping Off” Paid Leave with Other PTO Employers may supplement COVID-19 paid family leave benefits with other paid time off benefits for an employee. The aggregate amount of COVID-19 paid leave and other leave benefits may not exceed an employee’s normal earnings. Employer tax credits are only available for the statutory leave benefit payments. More Leave Expected The addition of this Emergency paid family leave may result in more employees taking FMLA and EFMLA leave, which will affect the administration of group health plans. Employers should review their policies and procedures in light of the changes (e.g., new definitions and temporary timeframes). Structure of the Law The extended paid family leave provisions of the law amends the existing FMLA law. Importantly, that means that substantially all of the body of FMLA law and regulations exist and apply to this new type of leave. This should add a measure of familiarity to this provision, since standard FMLA definitions, conventions, and provisions will apply to this new type of leave.

How is Pay Calculated? The regular rate of pay used to calculate paid leave is the average of the employee’s regular rate over a period of up to six months prior to the employee’s leave date. For employees who have not worked for six months, the regular rate used is the average rate of pay for each week worked over the period of employment. Integration with Teleworking Telework/work from home arrangements under the current Shelter-in-Place orders are commonplace for many employers. When an employee can work from home and is paid normal wages, no benefits are available under the paid family leave program. If an employee works a normal number of hours, but performs that work outside their normally scheduled workday (for instance early in the morning or late at night), the employee is considered able to work, and paid leave would not be available to them. That is, unless the employee experiences a COVID-19 qualifying reason that would prevent them from working.

Can Paid Leave be Taken Intermittently?

Yes, paid leave may be taken intermittently. The increment of the intermittent leave may be arranged at any level supported by the employer (daily or even in hourly periods of time). The DOL encourages employers to work collaboratively with employees to achieve flexibility and meet mutual needs. Voluntary arrangements that combine telework and intermittent leave are also acceptable.

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