May an employee take leave under the EPSLA or the EFMLEA on an intermittent basis? (29 C.F.R. § 826.50)
If taking intermittent leave while teleworking, intermittent leave may be taken in any agreed increment of time.
Employees working at an employer’s worksite may only take leave intermittently to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable because of reasons related to COVID-19. Otherwise, employees that work at an employer’s worksite (as opposed to teleworking) are not permitted to take intermittent leave and must use the permitted leave consecutively until the leave is exhausted and/or the employee no longer has a qualifying reason to take leave.
This limit is imposed because if an employee is sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of the FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.
The Department of Labor’s Final Rule also provided that, with respect to leave for care of an employee’s son or daughter, the employer must consent to intermittent leave. On August 3, 2020, the United States District Court for the Southern District of New York held that the consent requirement was invalid. Read more about the decision.
The status of the consent requirement, therefore, may not be valid, depending on whether the Court’s decision is upheld on appeal.
Employers should discuss requests for intermittent leave with counsel.
Last updated August 4
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