Jackson Walker Updates FAQs on Employment Issues Arising Out of COVID-19

April 9, 2020 | Insights

By Gary Fowler, Judy Garner, Sarah Mitchell Montgomery, Scott McElhaney,
Sara Harris, Alicia Duleba, & Greta Cowart

Jackson Walker today posted its update to FAQs on employment issues arising out of the COVID-19 pandemic.

The JW updates reflect recent Department of Labor (DOL) regulations and guidelines for employer compliance with the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The updated JW FAQs provide employers with a tool for understanding these complex regulations and, thus, to utilize counsel more efficiently in resolving real-life workplace issues. Previous JW Alerts describe both Acts and the initial guidelines.

Ambiguities in both EPSLA and EFMLEA arose from the emergency environment surrounding their enactment in the Families First Coronavirus Response Act (FFCRA). The regulations and the guidelines address many, but not all, of those ambiguities.

For example, the DOL has taken contrary positions at different times with respect to whether leave under EFMLEA runs concurrently with employer-provided vacation and other paid leave.  Generally, under pre-existing law under the Family and Medical Leave Act (FMLA), either the employee may elect, or the employer may require, FMLA leave to run concurrently with employer-provided vacation or personal leave. Unlike traditional FMLA leave, however, EFMLEA leave is paid leave, up to a maximum of $200 per day. Whether leave runs concurrently is important to employers because, otherwise, an employee can take 12 weeks of leave per year and then tack on the employer-provided leave. Employees who make less than the $200 per day cap may also want leave to run concurrently so that they receive full pay by using their PTO.

In its original guidelines, the DOL stated that the employee could elect, but the employer could not require, EFMLEA childcare leave to run concurrently with employer provided leave.  Then, on April 3, the DOL revised the guidelines to state that an employer could require leave to run concurrently but only after the first two weeks of EFMLEA leave. The DOL’s current position is explained in the JW FAQs here. Even with these guidelines, the regulations remain unclear as to how the paid portion of the EFMLEA reduces an employee’s bank of PTO accrued leave.

The DOL guidelines and regulations also address information that an employer may require from an employee. In addition, Internal Revenue Service (IRS) rules require the employer to have certain information from the employer to support the tax credits afforded by FFCRA. Unlike traditional FMLA, the DOL has not yet prescribed a form for employees to complete, and employers to approve, either Paid Sick Leave or EFMLEA childcare leave. For now, employers are left to drafting their own form and may wish to consult counsel in arriving at one adapted to their particular circumstances.

A word of caution. As noted, the DOL has changed its position on at least one issue and may change its interpretation on this or other ambiguities in the statute. Congressional Democrats criticize the DOL regulations as too restrictive and not reflecting the intent to assist employees during the pandemic, so further Congressional action may affect employee leave rights.  While the regulations are persuasive, they are not always binding on courts. Employers should review federal and state websites, including those from the DOL and the IRS to stay abreast in this rapidly changing environment and seek counsel when particular issues arise.

Related Resources:

Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.

In This Story

Greta E. Cowart
Partner, Dallas

Alicia R. Duleba
Partner, Austin

Sara K. Harris
Partner, Dallas

Scott M. McElhaney
Partner, Dallas