DOL revises the definition of intermittent FMLA leave under the FFCRA

On April 1, 2020, the US Department of Labor (DOL) issued the implementing regulations pertaining to the Families First Coronavirus Response Act (FFCRA).  The FFCRA created two new types of paid leave, Emergency Paid Sick Leave (EPSL) and Expanded Family and Medical Leave (EFMLA).  Both categories of leave allow an employee to be absent from work in order to care for a child whose school or place of childcare is either closed or unavailable due to the COVID-19 pandemic.  The FFCRA grants employees up to 80 hours of EPSL and up to 12 workweeks of EFMLA for this reason.  Under the EFMLA rules, the first two weeks of leave are unpaid; however, the employee may use either their own paid leave or EPSL to receive pay.  The remaining ten of weeks are paid at no less than two-thirds of the employee’s regular hourly rate of pay, but capped at $200.00 per day and $10,000.00 total.  EPSL used during the first two weeks of the absence is payable at no less than two-thirds of the employee’s regular hourly rate of pay, also capped at $200.00 per day and $2,000.00 total.

According to the regulations issued on April 1st, employees were only allowed to take the EFMLA leave intermittently upon the approval of the employer.  On September 16, 2020, the DOL issued revised rules, clarifying the definition of intermittent leave.  Under this revision, employer approval of intermittent leave is not required when an employee needs to take leave due to their child’s school operating on alternate days of in-person and distance learning.  In these cases, each day the school is closed constitutes a new reason for the leave and the reason would cease once the school reopens.

For example, if the school is open for in-person learning on Monday, Wednesday, and Friday, the employee would be allowed to take leave on Tuesday and Thursday, when the child is not allowed to be present in the school.  The same rule applies in circumstances where the school is open for a portion of the day.  The reason for the leave would begin at the time the child was not allowed to attend class in the school and end upon their return to the building.


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