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I know you want to hear FFCRA musings [though I’m not sure why…], but first take a look at this beauty of a ten-week old golden retriever pup, Annie, who we just brought home.

My heart is full.

Take as much time as you’d like admiring that beautiful doggy before I move on . . .

Onto the Families First Coronavirus Response Act (FFCRA)

Given that the U.S. Department of Labor seems reticent about helping employers understand how they are to administer the “new” FFCRA, employers are left in the dark on a couple very critical FFCRA questions. Two questions, in particular, seem pressing:

Do employees get a new bucket of emergency paid FMLA leave (EFML) as of April 1?
Given the uncertainty, should an employer count EFML against the 12 weeks of FMLA classic leave?
New bucket of EFML?

It’s fairly clear that, as of April 1, an eligible employee can take 10 days of emergency paid sick leave (EPSL). It’s far less clear based on the statute, but it seems a reasonable reading of the new statute that an employee also is entitled to EFML so long as they have FMLA leave available.

Should an Employer Count EFML Against FMLA Classic Leave?

The main issue then is whether EFML also draws down FMLA classic leave. Sadly, there is absolutely no clear answer to this query. Zilch. Nada. In the absence of any DOL guidance, here is generally what I am telling employers:

First, the employer needs to understand the risk in offering EFML in conjunction with FMLA classic, given the lack of guidance.
Given the uncertainty, the employer might consider choosing to provide 10 days of EPSL only, and not EFML, which ensures its risk is effectively zero.
If the employer chooses not to offer EPSL or EFML, or both, the decision should be announced to employees asap so that employees know the expectations and leave entitlements. Changing your leave entitlements later may lead to employee claims that you misrepresented the leave.
As to whether EFML should count against FMLA classic leave, the employer must determine its risk tolerance. If you want to play it conservatively, you provide EFML on top of any FMLA classic leave. This is a whole lotta leave, but this approach ensures no liability. On the other, if the employer’s risk tolerance is higher, the employer should consider including EFML as part of the FMLA bank, and EFML would draw down the employee’s FMLA classic leave. This latter approach makes a ton of sense. As I explained in a blog post last month, it makes no sense that Congress would have intended eligible employees to obtain a bucket of 12 weeks of FMLA classic and a separate bucket of 12 weeks of EFML. The practical solution here points to treating EFML as we did in 2020 — that is, if leave is taken for a reason covered by EFML, it also counts against FMLA classic. The approach of drawing down FMLA classic leave arguably is defensible:
If an employer administered EFML/FMLA this way, it arguably has not violated the law unless and until: 1) the employee has exhausted all FMLA leave; and 2) the employer denies any requested FMLA leave thereafter. The case law is fairly clear that an FMLA violation does not occur until FMLA leave is wrongfully denied, not before then. Practically speaking, it’s possible, in fact likely, that many of these employees will never burn through their FMLA leave during the employer’s 12-month period, so there is no harm/no foul in designating this time NOW as FMLA classic, as most employees will not exhaust FMLA leave.
Given the risk, though, if the employer heads down this route, it must be prepared to undo these FMLA designations if the DOL later provides guidance that we should not have counted EFML against FMLA classic.
To be clear — this advice is the best I’ve got based on what I see from the statute and in light of the lack of DOL guidance. I welcome your feedback on how you’re approaching these questions. Let me hear from you!

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