PTO in a Pandemic

Many Americans breathed a proverbial sigh relief when Congress passed the Families First Corona Virus Response Act (FFCRA) earlier this year. In effect through Dec. 31, the FFCRA “requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.” Essentially, the FFRCA – which contained the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) – provides employees income replacement and job protection against COVID-19.

While reports of vaccine success rates have fueled hopes the COVID-19 pandemic may soon begin to subside, the FFCRA’s pending demise has left many employers and HR professionals with a lot of questions (and fewer answers). As a second wave of COVID-19 cases surge nationwide, many now find themselves in the challenging position of re-evaluating how they offer paid time off (PTO) to supplement time in concurrence with the Family and Medical Leave Act (FMLA). 

WHAT THE ACT COVERS

Generally, the FFCRA states that employers must provide all employees with: (1) Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay when unable to work due to being quarantined due to COVID-19 or, (2) Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a need to care for an individual subject to quarantine or a child whose school or childcare provider is closed/unavailable for reasons related to COVID-19.

With lawmakers still unable to come to an agreement on a second stimulus package, some are fearful of a rise in COVID-19-related lawsuits following a successful legal challenge by New York state to DOL regulations. With nearly 1,000 COVID-19 related labor and employment lawsuits filed against employers as of Nov. 17, the need to understand FFCRA laws is imperative. Given the ever-changing nature of the situation, knowing the basic tenets of what practices are and are not allowed will be critical to employers moving forward (barring any further legislation).

PROTECTION, POLICIES AND YOU

The U.S. Department of Labor (DOL) updated its guidance for employers covered by the FFCRA on April 20 to define how certain parts of the law’s emergency paid leave can run concurrently with other paid leave options. As a result, employers:

• MAY require an employee’s PTO under their company’s policies to run concurrently if it allows the employee to care for their child because their school/childcare center is closed or unavailable for a COVID-19 related reason.
  
• MAY NOT run employer-provided PTO concurrently with the FFCRA’s paid sick time. 
• MUST pay an employee’s full pay if they require that non-FFRCA PTO be run concurrently with emergency FMLA leave until the time said employee has exhausted available PTO under the employer’s plan. This includes vacation and/or personal leave. Employers in the situation MAY ONLY obtain tax credits for wages paid at two-thirds the employee’s regular rate of pay at a rate of up to $200 daily or $10,000 total.
• MAY agree with an employee electing to take emergency FMLA leave to use employer-provided PTO to supplement the two-thirds pay that said employee receives under the emergency FMLA leave to receive their full amount of normal compensation. Additionally, an employee may elect to take the FFCRA’s paid sick time or employer-provided PTO during the first 2 weeks of the FMLA leave – which is otherwise unpaid – provided under the FFCRA’s emergency provisions. Employees may NOT use both paid sick time or employer-provided paid time during this 2-week period NOR can an employer require the employee to do this.

Employers with fewer than 50 employees may qualify for an exemption to be determined on an individual basis.

MOVING FORWARD

To provide employees the leave they are owed under the law and protect your organization against litigation, one of the most important (if not the most important) things employers can do moving forward is to keep and maintain thorough records. Documenting the various types of leaves of absence and calculating its use by each individual employee will go a long way in making sure your organization is meeting all DOL requirements. 

Additionally, this may be a good time to devise alternative plans (whether it be granting extended PTO hours, letting employees donate hours to those in need, etc.) to make sure all requirements are being met and avoid potential messy litigation. Staying on top of the latest government rulings is also critical to avoid problems as well.

If you have questions regarding PTO programs or need guidance through this challenging time, the human resources experts at Erigo Employer Solutions are here to help.

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