Since then, the DOL has supplemented its question and answer document multiple times and it now has over 80 questions and answers! We have reviewed the questions and identified below those that may be pertinent to school district employers. The full list of Q&As can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Please refer to the below list, these are numbered as they appear in the DOL document.
12. Is all leave under the FMLA now categorized as paid leave?
No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or if a childcare provider is unavailable, due to COVID-19 related reasons.
13. Are the paid sick leave and expanded family and medical leave requirements retroactive?
No.
32. If I am an employer, may I use the paid sick leave mandated under the Emergency Paid Sick Leave Act (“EPSLA”) to satisfy paid leave entitlements that an employee may have under my paid leave policy?
No, unless your employee agrees. Paid sick leave under the EPSLA is in addition to your employee’s (including Federal Employees’) other leave entitlements. You may not require your employee to use provided or accrued paid vacation, personal, medical, or sick leave before the paid sick leave. You also may not require your employee to use such existing leave concurrently with the paid sick leave under the EPSLA.
33. If I am an employer, may I require my employee to take paid leave he or she may have under my existing paid leave policy concurrently with leave under the
EFMLEA?
Yes. After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the Expanded Family Medical Leave Expansion Act, you may require that your employee take concurrently for the same hours expanded family and medical leave and existing leave that, under your policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if your
employee (or a covered family member) is not ill.
44. Do I qualify for leave for a COVID-19 related reason even if I have already used some or all of my leave under the Family and Medical Leave Act (FMLA)?
If you are an eligible employee, you are entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave you have taken under the FMLA.
However, if your employee was covered by the FMLA prior to April 1, 2020, their eligibility for expanded family and medical leave depends on how much leave they have already taken during the 12-month period. Employees may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period.
47. May employees use paid sick leave and expanded family and medical leave together for any COVID-19 related reasons?
No. The Emergency Family and Medical Leave Expansion Act applies only when an employee is on leave to care for his/her child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 related reasons. However, they can take paid sick leave under the Emergency Paid Sick Leave Act for numerous other reasons.
55. Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?
The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
62. If an employee becomes ill with COVID-19 symptoms and decides to quarantine for two weeks but does not seek a medical diagnosis or the advice of a health care provider. Can they get paid for those two weeks under the FFCRA?
Generally, no. Employees may not take paid sick leave under the FFCRA if they unilaterally decide to self-quarantine for an illness without medical advice, even if they have COVID-19 symptoms.
Employees may not take paid sick leave under the FFCRA if they become ill with an illness not related to COVID-19.
69. Can more than one guardian take paid sick leave or expanded family and medical leave simultaneously to care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons?
Employees may take paid sick leave or expanded family and medical leave to care for his/her child only when they need to, and actually are, caring for the child if they are unable to work or telework as a result of providing care. Generally, employees do not need to take such leave if a co-parent, co-guardian, or \usual childcare provider is available to provide the care the child needs.
77. May an employee take paid sick leave or expanded family and medical leave under the FFCRA if they are on an employer-approved leave of absence?
It depends on whether the leave of absence is voluntary or mandatory. If the leave of absence is voluntary, the employee may end your leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents them from being able to work (or telework).
However, an employee may not take paid sick leave or expanded family and medical leave under the FFCRA if their leave of absence is mandatory. This is because it is the mandatory leave of absence—and not a qualifying reason for leave—that prevents you from being able to work (or telework).
Article written by Michelle Alcala.
