Tag Archives: Paid time off

DOL: FFCRA Leave Can Be Taken Intermittently By Agreement Of The Employee And Employer (In Some Circumstances)

Contributed by Brian Wacker, April 2, 2020

The Department of Labor has issued Temporary Regulations on the Families First Coronavirus Response Act (FFCRA) to address an issue already causing employers fits – namely, can employees use paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) intermittently?  

According to the DOL: it depends. 

The employer and employee must agree to intermittent leave.

First and foremost, the regulations are clear that “one basic condition” applies to all employees who seek to take leave under the FFRCA: “they and their employer must agree.” Without such an agreement, leave cannot be taken intermittently. While there is no requirement of a written agreement, it is advisable to have one.  Because the DOL has said that in the absence of a written agreement to intermittent leave, “there must be a clear and mutual understanding between the parties.”  In addition, the agreement must also be certain as to the increments of time in which the leave is taken intermittently. 

If the employer and employee agree to intermittent leave, when is it permissible under the FFCRA?

Intermittent leave is not permissible in all situations. 

If the employer and employee agree that the employee may telework (e.g., working from home), the employee is permitted to take intermittent leave (paid leave and/or expanded family or medical leave) in any agreed increment of time. This regulation is drafted intentionally broad to give employers flexibility to balance the needs of the teleworking employee and the “needs of the employer’s business.”

However, if an employee is still working at the employer’s jobsite, intermittent leave can only be taken “in circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees at an employer’s worksite.” Therefore, the regulations allow an employer and employee reporting to a worksite to “agree that the employee may take paid sick leave or expanded family and medical leave intermittently solely 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.” 

However, intermittent leave is prohibited for employees who report to an employer’s worksite – even if the employee and employer agree – if the leave it being taken for any of the following reasons:

  • because the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • because the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • because the employee is experiencing symptoms of COVID-19 and is taking leave to obtain a medical diagnosis;
  • because the employee is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • because the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

According to the Regulations, in these situations, intermittent leave is prohibited due to the “unacceptably high risk that the employee might spread COVID-19 to other employees when reporting to the employer’s worksite.”  So once an employee starts taking leave for any of these reasons, she must continue to take it until either the entire amount of provided leave is taken or until she no longer has a qualifying reason to taken leave.

Finally, the Regulations clarified that when permissible intermittent leave is agreed to by the employer and employee, “only the amount of leave actually taken may be counted towards the employees leave entitlements.” This means that if an employee returns from leave prior to expiration of their leave entitlement under the FFCRA, they are still entitled to use the remaining leave entitlement for a separate qualifying reason and are not otherwise prohibited from doing so by the Intermittent Leave regulations.

Prior to the issuing the regulations, the DOL issued guidance on these issues, which is consistent with the regulations, which can be found on the DOL website.

Can Employers Use Existing Paid Leave Benefits to Offset Emergency Paid Sick Leave under the FFCRA?

Contributed by Suzanne Newcomb and Brian Wacker, March 27, 2020

On March 18, President Trump signed into law the Families First Coronavirus Response Act (FFCRA). A component of the FFCRA is the Emergency Paid Sick Leave Act (EPSLA), which requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to the COVID-19 corona virus starting April 1. 

Generally, EPSLA requires covered employers to provide all employees with two weeks (up to 80-hours) of paid sick leave at the regular rate of pay when the employee is unable to work because he/she is quarantined pursuant with governmental or doctor’s orders and/or experiencing COVID-19 symptoms and seeking a medical diagnosis. Additionally, if the employee is unable to work due to a bona fide need to care for someone else under quarantine, or a child whose school is closed for COVID-19 related reasons, then the employer is required to provide two weeks of paid sick leave at the rate of two-third (2/3) the employee’s regular rate of pay.

The question, however, for many employers is whether any employer provided, or local/state government mandated, paid sick leave policy or other paid time off (PTO) benefits can be used to meet the EPSLA mandate and if not, whether an employer can require employees to first use previously earned/accrued sick leave prior to availing themselves of this new ESPLA benefit. 

The answer to both questions is NO. The EPSLA states that an employer “may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time.” The EPSLA does not expressly state paid sick leave in this limitation, but newly published guidance from the DOL clarifies that paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements. Accordingly, earned/accrued sick leave or other paid leave existing prior to April 1, 2020 cannot be used to offset or substitute for the mandates under the FFCRA.

Of course, existing employer provided, or local/state government mandated, paid sick leave or other PTO benefits can be used to cover absences that occur prior to April 1st or to extend the period of paid leave beyond FFCRA mandates. Employers may also choose to allow (but cannot require) employees receiving 2/3 pay under FFCRA’s paid sick leave or paid family and medical leave provisions to use existing paid leave to supplement the 2/3 pay up to the amount of the employee’s normal earnings.

Is Your Company Ready For the Chicago and Cook County Sick Leave Ordinances Effective July 1, 2017?

Contributed by Sara Zorich and Beverly Alfon, May 3, 2017

51162387 - calendar on white background. 1 july. 3d illustration.

calendar on white background – July 1

The July 1st effective date of the Cook County and Chicago Sick Leave Ordinances is quickly approaching and employers must review their paid time off, sick and vacation policies now to ensure compliance with the new ordinances. Some of the key similarities and differences of the ordinances’ provisions are highlighted below:

Similarities:

  • Covered Employee – An employee who: (1) works for an  employer at least 80 hours within any 120-day period; and (2) performs at least 2 hours of work in Cook County (or the City of Chicago depending on the ordinance being applied) during any 2 week period — including driving through county (or city) for business purposes.
  • Accrual Rate – Employees earn 1 hour of earned sick leave for every 40 hours they work.
  • Cap – Employees can earn up to 40 hours of paid sick time per 12 month period.
  • Carryover – 20 hours for non-FMLA employers but if the employee is FMLA eligible, an additional 40 hours may be carried over for FMLA purposes only.
  • Permitted Use – Employee’s own or family member’s illness, injury, medical treatment or diagnosis, preventative care; also domestic violence or sexual assault, or public health emergency closure related to child’s school or care facility.
  • Family Member Definition – Employee’s child, legal guardian or ward, spouse, domestic partner, parent, spouse or domestic partner’s parent, sibling, grandparent, grandchild, including step and foster relationships, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.
  • Restriction on Use – Generally, only 40 hours of paid sick leave may be used per 12 month period.  However, if the employee is eligible to carry over additional paid sick leave hours for FMLA purposes, up to 40 hours can be used for FMLA purposes only, and an additional 20 hours can be used for other purposes – for a total of 60 hours.
  • Employee Notice to Company – Employers can require the employee to give up to 7 days notice if need for leave is reasonably foreseeable (e.g., prescheduled appointments, court dates). Otherwise, the employee may give the employer notice of the need for leave as soon as practicable via phone, email or text message.
  • Payout – No payout at termination.
  • Posting Requirements – Both written notice with first paycheck after 7/1/17 and poster (to be created by the enforcing agency).
  • Documentation – An employee may be required to provide documentation to support absence of more than 3 consecutive work days.
  • Retaliation – No retaliation for using accrued sick leave under the ordinance.

Differences:

  • Employer coverage is only required if you have a “place of business” in Cook County, whereas in Chicago an employer is subject to the ordinance if they “maintain a business facility” in Chicago or are subject to Chicago’s business licensing requirements. This means that more employers outside of Chicago may be subject to the ordinance solely because they have a Chicago business license.

Key Issues to Consider

Employers must take the time to carefully review their existing policies to determine if their policies are compliant with the new ordinances or if changes need to be made. Issues for the company to consider include:

  • Do you have a paid time off or sick leave policy?
  • Have attendance and administrative processes been updated to reflect the requirements of the law (e.g., receiving notice of unforeseeable leave by phone, email, or text message)?
  • Are federal or local disability laws implicated by an employee requesting or taking leave, or returning to work from leave?
  • What procedures are in place to engage in the reasonable accommodation interactive process?
  • Have employment policies been vetted by experienced employment counsel?

Along with these general issues, there are some “tricky situations” employers with multiple locations must consider:

  • Will the company change its sick policy or create a new policy for all Illinois employees?
  • How to address and track when an employee triggers accrual when that employee’s normal business location is not in Cook County or Chicago?

The Cook County Commission on Human Rights has issued its proposed regulations governing the Ordinance which can be found under downloads on the Cook County website. Any entity can submit comments to the Cook County Commission on Human Rights by mail and/or email (human.rights@cookcountyil.gov) by May 8th.  SmithAmundsen is working on its submission to the commission for clarification of some of the proposed regulations.

It should be noted that certain municipalities have opted out of the requirements of the Cook County ordinance: Barrington, Bedford Park, Elmwood Park, Mount Prospect, Oak Forest, River Forest, Rosemont, Schaumburg and Tinley Park. More municipalities are expected to opt out prior to July 1.

Seventh Circuit Makes Several Points Very Clear Regarding Illinois Vacation Pay

Contributed by Steven Jados, January 31, 2017

vacation-timeThe U.S. Court of Appeals for the Seventh Circuit issued a recent decision that made several pronouncements regarding Illinois vacation pay—many of which seem straightforward—but they were pursued to a final decision by a federal appellate court, so a brief refresher course appears to be in order.

First, as the decision makes clear, the law does not require employers in Illinois to provide paid vacation benefits to employees.  However, when an employer in Illinois provides paid vacation benefits to employees, Illinois law requires the employer to pay an employee the value of earned-but-unused vacation time when the employee’s employment ends.  And that payment is generally required to be made on the next regular pay date following the employee’s termination.

Second, if an Illinois employer provides vacation benefits to full-time employees, Illinois does not require the employer to give vacation benefits to part-time employees, too.  Instead, Illinois law gives employers substantial freedom to determine the eligibility requirements for any vacation benefits an employer may decide to provide.

Lastly, the seventh circuit addressed the issue of vacation benefit forfeiture, and stated that if a vacation policy exists under which employees earn vacation based upon length of service, employees must be paid, pro rata, for the amount of vacation earned as of the employee’s termination date.  The court gave the following example:  “if a full-time employee ceases work in the middle of the year, he receives vacation pay in proportion to how long he was worked that year.”  In other words, if an employee works for half of a year, she must be paid half the value of vacation pay she would have earned working a full year.  If the employee works 20% of the year, she must be paid 20% of the value of vacation pay she would have earned working a full year.

The bottom line is that Illinois is quite permissive with respect to employers establishing the terms and eligibility requirements of a vacation policy, so long as that policy provides for the payment of earned-but-unused vacation to employees at the time of termination.  That said, in order to avoid potential legal pitfalls, we recommend that all employers, no matter where their workforce is located, consult with experienced labor and employment attorneys prior to instituting or altering any vacation policy.

More from California – Paid Family Leave to Care for More Family Members!

Contributed by Karuna Brunk

On September 24, 2013, Governor Jerry Brown signed a bill to extend California’s Paid Family Leave program to relatives beyond parents, spouses, children, registered domestic partners, and same-sex spouses.  Under this program, employees will be able to take up to 6 weeks off from work with partial pay from the state to take care of extended family members such as grandparents, grandchildren, siblings, or parents-in-law. 

California’s Paid Family Leave guarantees up to 55% of an employee’s average weekly salary for up to 6 weeks within a 12-month period.  Employees pay for the partial salary through a 1% deduction in their paychecks on the first $95,585 they earn annually.  To be eligible for the partial payment, employees must have earned $300 in the preceding 12 months. 

What does this mean for employers?    Essentially, employees in California can now take paid time off to take care of grandparents, grandkids, and other extended family.  Already the Federal Family Medical Leave Act and the California Family Rights Act allow employees to take up to 12 weeks of job protected but unpaid leave.  Although Paid Family Leave does not guarantee job protection, the new additions to the act allow employees to take paid time to care for additional persons.  In accordance with this new legal expansion, employers should update employee manuals and internal policies.  They should also get ready for more employees to take leave.