In an effort to resolve a contradiction in the regulations, which was identified by The Kullman Firm earlier this week, the DOL today issued corrections to the FFCRA.
Conflicting portions of the new law left employers unclear whether they could require employees to take paid leave under employer-provided policies concurrently with leave under the EFMLEA. Specifically, in the DOL’s Q&As and Sections 826.23(c) and 826.24(d) of the FFCRA, the DOL stated that employers could do so, while Section 826.70(f) said they could not. To resolve this conflict, the DOL has deleted the prohibitive 826.70(f) language from the new law. This change makes it clear that an employee may elect or an employer may require that an employee take paid leave that he or she is entitled to under employer-provided policies concurrently with EFMLEA leave after the first two weeks of unpaid leave are exhausted. Employees may also, with employer approval, simultaneously take paid sick leave under the EPSLA and preexisting employer-provided leave in order to supplement the amount received from paid sick leave up to the employee’s normal earnings. Where employees are required to take existing leave concurrently with EFMLEA leave, employers must pay them the full amount to which they are entitled under the paid leave policy.
Because legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.