On April 10, 2020, the Department of Labor (“DOL”) released corrections to the regulations implementing the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”) provisions of the Families First Coronavirus Response Act (“FFCRA”).

We have written in detail about the DOL’s FFCRA regulations in a recently-updated post here.  Our prior posts on the DOL’s informal question and answer guidance on the FFCRA (“Q&As”) can be found here, here and here.

Corrections to the regulations address, for the most part, section and subsection heading, numbering and referencing issues.  A previous citation to April 2, 2020 as the effective date of the temporary rule is corrected to reflect the actual effective date – April 1, 2020.

The most significant correction addresses an area of “murkiness” we pointed out in our prior post on the regulations.  As we wrote, the regulations are clear that “an employer may not require an employee to use provided or accrued paid vacation, personal, medical or sick leave before or concurrently with EPSLA leave. This is because EPSLA leave is in addition to, not a substitute for, an employee’s other leave entitlements. An employer and employee may mutually agree that the employee will use preexisting leave entitlements to supplement his/her paid sick leave, up to the employee’s normal earnings.”

With respect to the use of other leave concurrently with EFMLEA leave, the regulations made clear that an employee may elect to use existing leave entitlements concurrently with expanded family and medical leave under the EFMLEA, but the regulations – in 29 C.F.R. §§ § 826.160(c)(1) and 826.70(f) – contained contradictory guidance regarding whether an employer may require an employee to use existing leave concurrently.* The DOL has recognized this inconsistency and in its revised regulations deleted § 826.70(f) completely. With this revision, the regulations are clear that “an Eligible Employee may elect to use, or an Employer may require that an Eligible Employee use, provided or accrued leave available to the Eligible Employee [] under the Employer’s policies, such as vacation or personal leave or paid time off, concurrently with Expanded Family and Medical Leave.”  29 C.F.R. § 826.160(c)(1).

We will continued to monitor and report on changes and updates to the DOL’s guidance on the FFCRA.

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* § 826.70(f) provided that “[b]ecause this period of [EFMLEA] is not unpaid, the FMLA provision for substitution of the Employee’s accrued paid leave is inapplicable, and neither the Eligible Employee nor the Employer may require the substitution of paid leave.”  This provision was inconsistent with § 826.160(c)(1), which provides that “an Eligible Employee may elect to use, or an Employer may require that an Eligible Employee use, provided or accrued leave available to the Eligible Employee [] under the Employer’s policies, such as vacation or personal leave or paid time off, concurrently with Expanded Family and Medical Leave.”

Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.