KBS Reference Desk: Intermittent Leave Under the FFCRA

Q:        I heard new legislation exists as a result of the COVID-19 pandemic requiring employers to provide paid sick leave and expanded family medical leave to their workers. One of our teachers notified us recently that she can only work remotely Wednesday through Friday each week while her children’s school remains closed. Is our teacher able to take intermittent paid leave under the new law?  

A:        Yes, if the employer and employee agree to the intermittent schedule and the employee otherwise qualifies for the leave. An employee who cannot work or telework because the employee must care for his or her child as a result of the closure of the child’s school for COVID-19-related reasons is eligible to take emergency paid sick and expanded family medical leave under the Families First Coronavirus Response Act. The U.S. Department of Labor advises that such leave may be taken intermittently only when the employer and employee agree, and it encourages employers to exercise flexibility during this unprecedented public health emergency. 

            President Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law on March 18, 2020 to tackle the economic impact of the COVID-19 pandemic on American employers and workers. The FFCRA contains two provisions – the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (FMLA+) – which allow employees to take paid leave under certain circumstances when they cannot work or telework due to the COVID-19 outbreak. Both provisions became effective last week, on April 1, 2020, and apply to leave taken under the FFCRA between April 1 and December 31, 2020.

            Any person employed as of April 1, 2020 is eligible to take paid sick leave under the EPSLA so long as they cannot work or telework for any one of six specified reasons. See Emergency Paid Sick Leave Act, Pub. L. No. 116-127, 116th Cong. § 5102 (2020). Relevant here, the EPSLA provides that a full-time employee is entitled to 80 hours of paid sick leave, at two-thirds her regular rate-of-pay up to $200 per day (a maximum of $2,000), if she is unable to work or telework because she is caring for her child and the child’s school has been closed due to COVID-19 precautions. Id.

The FMLA+ similarly allows eligible employees to take up to 12 weeks of “Public Health Emergency Leave” related to the COVID-19 pandemic. See Emergency Family and Medical Leave Expansion Act, Pub. L. No. 116-127, 116th Cong. § 3102 (2020). The FMLA+ requires an employee to work for her employer for at least 30 days before she may qualify for paid leave. Id. In addition, the FMLA+ generally requires an employer to compensate its employee who must miss work for COVID-19-related reasons at two-thirds her base pay up to $200 per day beginning after the employee’s first 10 days of leave. Id. Like the Emergency Paid Sick Leave Act, FMLA+ leave is available for an employee who is unable to work or telework because she must care for her child and the child’s school has been closed due to the COVID-19 pandemic. Id.

The EPSLA and FMLA+ include no express language regarding whether an employee may take paid sick leave intermittently while teleworking. Still, the U.S. Department of Labor (DOL) advises that such leave is permissible under both provisions when an employer and employee agree that the employee may take paid sick leave or expanded family medical leave while teleworking. Notably, the DOL encourages employers and employees to collaborate and exhibit flexibility to reach agreements combining telework and intermittent leave under the FFCRA.

The DOL Wage and Hour Division has published guidance about the FFCRA, which is available at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Please contact your local school attorney if you seek additional information or have specific questions.

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