The Department of Labor again updated its Question and Answer guidance on the Families First Coronavirus Response Act (FFCRA), to include nine new Q&As. The full, and now updated, guidance may be found here. The new Q&As focus largely on how to compute the number of hours and rate of pay for employee paid leave under the FFCRA.

The updated guidance also clarifies how an employer’s normal paid leave policies interact with the paid leave under the Emergency Paid Sick Leave (EPSLA) and the Emergency Family Medical Leave Expansion (EFMLEA) parts of the FFCRA. The guidance clarifies that employers may not require paid sick leave provided pursuant to their normal policies to run concurrently with paid sick leave provided by the EPSLA. However, employers may require any paid leave available to an employee under the employers’ policies to run concurrently with paid leave taken by an employee under the EFMLEA to care for his/her child whose school or childcare is closed due to COVID-19. In that case, the employee would receive his/her full pay (rather than just the 2/3 pay provided under the law in those circumstances). But the employer would only be eligible for tax credits in the amount of 2/3 the employee’s pay required under the EFMLEA. As you may remember, the law provides for up to 12 weeks of leave under the EFMLEA, 10 of which must be paid at 2/3 the employee’s regular rate; the first 2 weeks of such leave may be unpaid. Employees may elect to utilize the EPSLA’s paid sick leave provision to receive 2/3 pay during those first 2 weeks of leave, or the employee may elect to use any other paid leave provided by the employer during that time, but the employer cannot require the employee to utilize either.

By Rebecca D. Bullard, rbullard@dsda.com