Chapter 17: Other types of leave Skip to content Skip to footer


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Personal days

“Personal days” are not required by law so, just as with vacations, employers have considerable flexibility in setting their policies unless there is a collective bargaining agreement or specific agreements with individual employees. Employers may provide personal days to employees in addition to or instead of vacation and/or sick leave to be used for personal reasons, for example, caring for a sick child, staying home to monitor home repairs, etc. However, in light of attendance concerns and the abundance of legally required time off, many employers choose not to provide yet another opportunity for employee absences. It may make even less sense to designate personal days as paid days off in view of the fact that most employees will then consider the benefit akin to vacation time, leaving only the most conscientious of employees to use the benefit only when truly needed.

If the employer elects to adopt a policy providing for paid or unpaid personal days, it is clearly helpful to have that policy in writing. The policy should explain how personal days are granted, the conditions for the use of such days and any limitations on when such days may be used.

Holidays

There is no obligation under either federal or Florida law to pay employees for holidays or to pay them premiums for work performed on holidays. If the employer does choose to provide this benefit to employees, it makes good practical sense to put the policy in writing to enhance employee morale and to avoid confusion. Employers should designate in advance:

  • who is entitled to holiday pay
  • which holidays will be recognized
  • any conditions for the receipt of holiday pay (such as “you must work your regularly scheduled days before and after the holiday”)
  • the rate of holiday pay (the “double time” mentioned in the sample policy is optional and is not required by law in Florida)
  • the employer’s practice regarding the observance of holidays occurring on weekends, normal days off and during vacations or other approved times off.

Paid time off and paid leave

With an ever‑increasing emphasis on flexibility and accommodation in the workplace, many employers are beginning to offer paid time off (PTO), a paid leave bank (PLB) or similar benefits to employees instead of paid vacation, sick leave and personal leave. Such a policy offers employees greater freedom to use their paid time off in a manner that reflects their own personal needs, values, commitments and lifestyle choices. More importantly, the policy eliminates the need for the employer to police – and the incentive of the employee to fabricate – the reasons an employee uses to take time off.

The decision to use conventional vacation/sick leave/personal leave policies or to adopt a more flexible PTO or PLB policy must be made by each employer based upon the particular human resource philosophy and management style of the business. The law does not prefer one approach over the other. However, if an employer does elect to implement a PTO or PLB policy, the employer should clearly state their policy regarding how PTO or PLB is accumulated, whether granted but unused PTO or PLB will carry forward to the following year (and, if so, how much) and whether granted but unused PTO or PLB balances will be paid out at termination.

Vacation

Employers in Florida are not required by federal or state law to provide vacation benefits to their employees so, unless there is a union collective bargaining agreement or specific agreements with individual employees, employers have considerable flexibility in setting vacation policies. If an employer does provide vacation benefits, as most do, the employer’s vacation policy should clearly state the requirements for taking vacations and granting vacation pay and that policy should be communicated to all employees.

When vacation can be taken

The employer may place reasonable limitations on when employees can take vacation, for example, by requiring employees to take one week of vacation during an annual shutdown or during a specified period when business traditionally is slow. Employers also may require that vacation be taken in certain increments; for example, if employees are given two weeks of vacation per year, the employer may require that the employee use one week all at once.

Granting vacation

It is important for employers to establish how vacation time is granted. Some may choose how vacation time is granted each pay period. Others may choose to have a full year’s worth of vacation granted upon an employee’s anniversary date or as of a specific date (for example, the first business day of the year or of the fiscal year). The decision as to how vacation is granted should be carefully considered because it will have an impact on how employees can use their vacation time and how they are paid for granted but unused vacation time if the employment ends. Employers may wish to restrict their employees’ ability to accumulate vacation over time. For example, an employer’s vacation policy may provide that:

  • vacation not used by the end of the calendar year is forfeited (a so-called “use it or lose it” policy)
  • only a specified amount of vacation time may be carried over from year to year and that any carry-over time must be used by a certain date the following year
  • employees may only be granted a certain amount of vacation and will not be granted additional time until their granted time balance drops below that level.

Vacation pay

Unlike some states, the Florida courts do not treat all vacation pay as “wages” and, therefore, do not require that all granted but unused vacation time be paid to employees upon termination of their employment unless such payment is required by the employer’s policy or by a contract. However, because the courts will determine whether the vacation time is being granted as a component of wages, the provisions in an employee handbook will be critical. Employers should clearly state in their policy:

  • how vacation pay is granted
  • whether granted but unused vacation time will carry forward to the following year (and, if so, how much)
  • whether granted but unused vacation pay must be paid out at termination.

For example, the employer’s policy may be that:

  • unused vacation time will be forfeited on termination
  • employees terminated for cause will not be paid for unused vacation time
  • pay for unused vacation time is capped at a certain amount.

It should be noted that several Florida courts have consistently ruled that vacation time which is “earned” or “accrued” may be akin to wages and may not be forfeited.

Sick days

As with vacations and personal days, there is no legal requirement in Florida to offer employees sick leave except as unpaid absences may be required under the federal Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA). Further, there is no requirement under either federal or state law that the employer pay for such days off. However, the employer should consider the possible loss of the salaried exemption under the Fair Labor Standards Act (FLSA) if an otherwise salaried‑exempt employee loses pay for sick days without an opportunity to have those days paid (by grant or otherwise) under the employer’s benefit or compensation policies (such deductions from salaries of “exempt” employees are discussed in detail in Chapter 17: Wages and hours).

Federal contractors in Florida are obligated to provide paid “sick days” to employees working on federal contracts as dictated by the Executive Order 13706 and discussed in detail in Chapter 03: Basic definitions: A guide to the HR Library.

The EEOC has long said that employer sick/disability leave policies cannot be inflexible as to an employee’s return to work from such leaves: an employer often cannot, without further inquiry, simply discharge the worker for failure to return to work at the expiration of the allowed leave period if the leave has been taken for a condition that could constitute a “disability” under the law. The EEOC believes that such automatic terminations can discriminate against disabled employees in violation of the Americans with Disabilities Act because the employer has failed to explore with the worker whether there is a “reasonable accommodation” that would allow the employee to return to active duty despite the disability. (The EEOC and the courts repeatedly have said that, in making “reasonable accommodation” decisions, employers should focus on whether and what accommodations might be appropriate and not on the existence (or not) of an underlying “disability.”) Not surprisingly, the EEOC considers unpaid extensions of the leave to be “reasonable accommodations” in certain circumstances. Therefore, many employers do not now put in their sick leave policies a provision stating “you will be discharged if you do not return to work as scheduled”; rather, the employers contact the employee as the end of the leave approaches to inquire about their return-to-work plans and whether there will be restrictions/limitations that might be accommodated by the employer.

If the employer does elect to offer paid or unpaid sick leave, the policy should be spelled out in clear and detailed terms so that employees understand the nature and limitations of the benefit.

Jury duty

Under Florida law, no person summoned or accepted to serve on any grand or petit jury in the state may be dismissed from employment because of the nature or length of service upon such jury. Furthermore, threats of dismissal from employment of any person summoned for jury service in the state because of the nature or length of service upon such jury may be deemed contempt of court and will subject the violator to compensatory and punitive damages as well as attorney fees.

Employers should note that the Fair Labor Standards Act (FLSA) significantly limits an employer’s ability to dock an exempt (salaried) employee’s pay for time spent on jury duty. In order to maintain an employee’s status as exempt from the overtime requirements of the FLSA, the employee must be paid “on a salary basis,” meaning that the employee regularly receives a predetermined amount of wages that is not subject to reductions based on variations in the quality or quantity of work performed. In other words, with few exceptions, exempt employees must receive their full salary for any week in which they perform any work, without regard to the number of hours or days worked. Improper deductions could result in the loss of exempt status for that employee. The federal regulations contain a very limited exception to the prohibition against deductions from pay with regard to jury duty:

While an employer cannot make deductions from pay for absences of an exempt employee occasioned by jury duty, attendance as a witness or temporary military leave, the employer can offset any amounts received by an employee as jury fees, witness fees or military pay for a particular week against the salary due for that particular week without loss of the exemption.

For example, if an exempt employee worked one day and was on jury duty the remaining four days in the week, the employee would be entitled to his or her full salary for that week, although the employer could deduct from the employee’s wages any amounts received from the court as jury fees. However, if an exempt employee were on jury duty for a full week and did not report to work at all that week, a deduction from his or her salary for the entire week would not violate the prohibition against deductions from pay in the “salary basis” requirement. The employer’s policy regarding jury duty leave should take this requirement into account and should clearly explain any differences in the application of the policy to exempt and nonexempt employees.

As a measure of goodwill towards employees, some employers elect to supplement jury duty pay so that all employees (exempt and nonexempt) continue to receive their regular compensation during this time. As in the sample policy, any requirements for receiving jury duty pay from the employer should be outlined in the policy.

Domestic violence leave

Florida employers with 50 or more employees must allow an eligible employee to take up to three days leave in any 12-month period if the employee or a family or household member is the victim of domestic violence. This leave may be with or without pay.

Domestic violence leave is available to an employee who has been employed by the employer for three or more months and who uses the leave to do any of the following:

  • seek an injunction for protection against domestic violence or an injunction for protection in cases of repeat violence, dating violence or sexual violence
  • obtain medical care or mental health counseling or both, for the employee or a family or household member to address physical or psychological injuries resulting from the domestic violence
  • obtain services from a victim services organization
  • make the employee’s home secure from the perpetrator of domestic violence or seek new housing to escape the perpetrator
  • seek legal assistance in addressing issues arising from the domestic violence or prepare for and attend court-related proceedings arising from the domestic violence.

Employees must provide appropriate advance notice of the need for leave, except in cases of imminent danger to the health or safety of the employee or family/household members.

Employers may require an employee to exhaust all available personal and medical leave before receiving unpaid domestic violence leave. Employers also may request documentation substantiating the need for leave. An employer who does request documentation should be very sensitive to the emotional impact such requests may have on the employee. Any information provided must be kept confidential.

Employers may not discipline or otherwise discriminate or retaliate against employees for requesting domestic violence leave and may not otherwise interfere with an employee’s attempt to exercise any rights under the domestic violence leave law.

Pregnancy leave

In addition to the FMLA, employers with 15 or more employees should be aware of the federal Pregnancy Discrimination Act (PDA). The PDA amended Title VII to provide that discrimination on the basis of pregnancy, childbirth or related medical conditions is a form of prohibited sex discrimination.

Pregnant employees must be allowed to take disability leaves of absence for pregnancy that are commensurate with leaves available to other employees for other medical conditions. In essence, employers cannot treat pregnancy leave less favorably than they treat other types of leave for similar conditions. Moreover, employers should be cautious in adopting leave policies that provide no leave or insufficient leave for pregnancy‑related conditions to avoid drawing a discrimination charge that such a policy has an adverse impact on female employees.

The U.S. Supreme Court concluded that an employer must offer reasonable accommodation to a woman experiencing work restrictions because of pregnancy or pregnancy-related conditions if the employer offers such accommodations to other employees who are experiencing similar work restrictions for reasons unrelated to pregnancy. The Court said clearly that employers could not deny such accommodations for pregnancy/pregnancy-related limitations because those limitations were unrelated to the job.

Employers not covered by federal law

Employers not covered by the FMLA still have broad discretion to define their medical leave of absence policies, that is, an employer may set the terms and conditions of employees’ medical absence leaves (including the duration, frequency and payment (or nonpayment) for such leaves) as the employer decides is in its best business interest. (Of course, employers covered by the Americans with Disabilities Act (ADA) may be required to provide unpaid leave as a “reasonable accommodation” for qualified employees with disabilities.)

Employers not subject to FMLA are not legally obligated to provide leave for the care of a newborn child or other family-related illnesses, events or conditions. However, if possible, within the scope of the business, such leave policies promote employee satisfaction and loyalty and encourage employees to return to work after such an event. If an employer not subject to the FMLA voluntarily chooses to include a leave policy after the birth, adoption or fostering of a child, then they are legally compelled to offer paternity leave under the same policy. Excluding men from such a leave could trigger a discrimination claim. However, if an employer not subject to FMLA treats pregnancy as a disability and addresses time off for labor, delivery and recovery as such, then it is not necessary to extend the policy beyond the mother. Note, however, that such a limited approach meaningfully excludes employees that may have children through adoption or foster care and careful consideration for morale should be applied.

Families First Coronavirus Response Act

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (FFCRA), which aims to provide initial relief to small and midsize employers and employees. The act provides paid sick leave under the Emergency Paid Sick Leave Act  (EPSLA) and expands the Family and Medical Leave Act (FMLA) to include coverage for emergency family leave under the Emergency Family and Medical Leave Expansion Act  (EFMLEA) for COVID-19 related reasons and creates refundable paid sick and childcare leave credits for eligible businesses.

The act’s effective date was April 1, 2020, with many of the provisions of the act ending on December 31, 2020. In addition to the paid leave requirements, some key takeaways from the act are:

  • free coronavirus testing
  • enhanced unemployment benefits
  • additional funds for Medicaid and nutritional programs
  • protection for healthcare workers and employees responsible for cleaning at-risk places.

Note: Provisions of the act are not retroactive.

Most importantly for employers, it requires two weeks of paid leave for COVID-19 related purposes and expands FMLA-type leave, including for caring for a child when a school or place of childcare is closed.

The new sick leave and expanded FMLA leave requirements apply to all employers with fewer than 500 employees. This includes those with less than 50 employees that are not covered by the FMLA. The geographic location of the employees is also not a factor, unlike the 75-mile radius used in the FMLA.

Covered employers

As stated previously, a covered employer is one with 500 or fewer employees – at the time the employee's leave is to be taken – within the United States, which includes any state of the United States, the District of Columbia and any territory or possession of the United States. In making this determination, you should include:

  • full-time employees
  • part-time employees
  • employees on leave
  • temporary employees who are jointly employed by you and another employer
  • day laborers supplied by a temporary agency.

Independent contractors under the Fair Labor Standards Act (FLSA) are not considered employees for purposes of the 500-employee threshold. Nor are employees that have been laid off or furloughed and have not been subsequently reemployed. Furthermore, employees must be employed within the United States.

If two entities are found to be joint employers under the FLSA, all of their common employees must be counted in determining whether paid sick leave must be provided.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act (FMLA), then employees of all entities making up the integrated employer are to be counted in determining employer coverage for purposes of the expanded family and medical leave requirements.

Paid sick leave

Under the Emergency Paid Sick Leave Act (EPSLA) employers are required to provide eligible employees with:

  • Two weeks (up to 80 hours) of paid sick leave at the employee's regular rate of pay where the employee is unable to work because the employee is quarantined due to an order by the federal, state or local government or under the advice of a healthcare provider, and/or he or she is experiencing COVID-19 symptoms  and seeking a medical diagnosis.
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds of 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 due to an order by the federal, state or local government or under the advice of a healthcare provider; or to care for a child (under 18) whose school or childcare provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition to the coronavirus (i.e., fever, shortness of breath, cough, etc.).

Part-time workers must be provided leave equal to the number of hours they would normally work in two weeks. For example, an employee who works an average of 32 hours per week would be entitled to 64 hours of paid sick leave.

The paid sick leave in the new law is in addition to any other paid leave that a company would otherwise provide and does not carry over from one year to the next.

A sample FFCRA leave policy and leave request forms for download and customization can be found under the Policies/Forms tab at the top of this chapter.

Reasons for leave

The EPSLA requires employers to provide paid sick leave to employees who are unable to work for the following six reasons having to do with COVID-19 where:

  1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.
  1. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
  1. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
  1. The employee is caring for an individual who is subject to a federal, state or local quarantine order related to COVID-19 or who has been advised by a healthcare professional to self-quarantine.
  1. The is caring for a son or daughter whose school or place of care has been closed or the childcare provider of such child is unavailable due to COVID-19 precautions.
  1. The employee is experiencing symptoms substantially similar to COVID-19.

Note: Each employee is only eligible for 80 hours of paid sick leave. Therefore, an employee may not take paid sick leave to care for an individual other than themselves and then take additional sick leave if he or she contracts the virus.

Exceptions

Employers may exclude employees who are healthcare providers or emergency responders from taking paid sick leave.

Self-quarantining

Unless an employee is unable to telework due to the requirements of his or her particular job, an employer is not obligated to pay sick leave for employees choosing to self-quarantine. An employee who is self-quarantining but still able to telework may not take sick leave if:

  • the employer has work for the employee to perform
  • the employer permits the employee to perform that work from the employee’s self-quarantine location
  • there are no extenuating circumstances, such as serious COVID-19 symptoms that prevent the employee from performing work.

Similarly, employees seeking a medical diagnosis due to experiencing symptoms of COVID-19 (i.e., shortness of breath, fever, dry cough, etc.) may take paid leave due to an inability to work for time spent making, waiting for or attending an appointment for a test for COVID-19. But the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis. If an employee who is waiting for the results of a test is able to telework, he or she may not take paid sick leave if the conditions described in the bullets above apply. However, such employees may continue to take leave while experiencing symptoms or testing positive provided the healthcare provider advises the employee to self-quarantine. Additionally, an employee who is unable to telework may continue to take paid sick leave while awaiting a test result, regardless of the severity of the symptoms he or she is experiencing.

An employee who exhibits COVID-19 symptoms and seeks medical attention but is told that he or she do not meet the criteria for testing and is advised to self-quarantine, would be eligible for paid sick leave provided he or she is unable to telework.

Caring for an individual other than oneself

To take paid sick leave to care for an individual other than oneself,  there must be a genuine need for the employee to care for the individual. Sick leave may not be taken for an employee to care for someone for which he or she has no personal relationship. “Personal relationship” is defined under the act as an immediate family member, roommate or similar person the employee has a relationship with where the expectation of care exists. Additionally, the individual needing to be cared for must either:

  • be subject to a federal, state or local quarantine or isolation order
  • have been advised by a healthcare provider to self-quarantine based on a belief that he or she has, or may have, COVID-19
  • be particularly vulnerable to COVID-19.

Pay requirements

Employees who are using sick leave for reasons related to their own isolation or care, must be paid their regular pay for the time they are absent, up to a maximum of $511 per day and $5,110 for the leave. Employees using sick leave for purposes of caring for a child or individual other than themselves must be paid up to 2/3 of their regular pay, up to $200 per day and $2,000 for the leave period.

Part-time employees are eligible for the number of hours of leave that the employee works on average over a two-week period.

Counting hours worked

Hours of leave are calculated based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. The part-time employee may take paid sick leave for this number of hours per day for up to a two-week period and may take expanded family and medical leave for the same number of hours per day up to 10 weeks after that.

If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. If there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

Determining the regular rate

For purposes of the FFCRA, the regular rate of pay used to calculate paid leave is the average of the employee’s regular rate over a period of up to six months prior to the date on which leave is taken. If an employee has not worked for a period of six months, the regular rate is the average of an employee’s rate of pay for the period in which he or she has worked for you. The FMLA expansion requires you to pay an employee for hours that he or she normally would have been scheduled to work even if that is more than 40 hours in a week.

However, the act only provides for 80 hours of pay for the two-week period. Thus, for example, an employee who is scheduled to regularly work 50 hours per week, would be paid for 50 hours of work in week one of the leave and you would then only be required to pay for 30 hours of work in week two.

Note: Pay does not need to include a premium for overtime hours.

If the employee’s schedule varies from week to week, an employer should use one of the methods discussed previously in Counting hours worked to calculate the regular rate of pay.

Subminimum wages

Employees with rates of pay lower than the federal, state or local minimum wage should be paid the higher minimum wage amount for the leave period. For example, an employee makes $4.65 per hour and the federal minimum wage is $7.25/hour; the state minimum wage is $9.00/hour and the local minimum wage is $10.00/hour. The employee would need to be compensated at the higher $10.00/hour for the paid leave period. For such employees taking leave to care for a child due to a school closing or unavailability of childcare, he or she would receive $6.67/hour for the leave period (2/3 the highest applicable minimum wage).

Expanded family and medical leave

The FFCRA also created the Emergency Family and Medical Leave Expansion Act (EFMLEA). Under EFMLEA, covered employers (those with less than 500 employees) must provide employees that have been employed by the employer for at least 30 days with up to 12 weeks of job-protected paid leave if the employee is unable to work (or telework) due to the need for leave to care for a son or daughter under 18 whose school or place of care was closed, or the childcare provider is unavailable, due a COVID-19 "public health emergency."

The first two weeks of the 12-week period are unpaid. However, an employee may use existing sick time, PTO and/or vacation time under the employer's policy if the employer elects to allow such employees to do so. If the reason for the leave is related to caring for a child, the employee may use the two weeks of EPSLA provided during the unpaid period. For the remaining 10 weeks of the period, employees must be paid at 2/3 of their regular pay, up to $200 per day and $10,000 per leave period. Unlike the regular FMLA, employers cannot require employees to use other paid leave.

Interaction with the Family and Medical Leave Act

The EFMLEA amends the FMLA to add a sixth reason to take the 12-week entitlement: To care for an employee’s son or daughter whose school or place of care is closed, or childcare provider is unavailable due to COVID-19 reasons. Employees are limited to a total of 12-weeks per leave period. Therefore, where an employee has already taken Family and Medical Leave Act (FMLA) leave in the current 12-month period, the maximum amount of EFMLEA leave is reduced by the amount of FMLA leave entitlement taken during the period.

Example - If the employer uses the calendar year as the 12-month FMLA leave year and an employee took three weeks of leave in January 2020 for the employee’s own serious health condition, that employee would only have nine weeks of EFMLEA leave available.

Additionally, employees are limited to a total of 12 weeks of expanded family and medical leave under the EFMLEA, even if the applicable time period (April 1 to December 31, 2020) spans two 12-month leave periods under the FMLA. For employees needing to take leave to care for a servicemember with a serious injury or illness, the total amount of leave available will be calculated based upon the maximum amount outlined under the FMLA of 26 weeks.

Note: Prior use of FMLA leave does not affect an employee’s ability to take EPFLA leave.

Because leave under the EFMLEA is paid leave, the FMLA provision allowing for substitution of the employee’s accrued paid leave is inapplicable, and neither the employee nor the employer may require the substitution of paid leave. However, where federal or state law permits and employers and employees agree, accrued paid leave may be used to supplement the two-thirds pay under the EFMLEA so that the employee receives the full amount of their normal pay.

Exemptions

Small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closing or childcare unavailability if the leave requirements “would jeopardize the viability of the business as a going concern.”

Note: This exemption is only available for the school closing or childcare unavailability provisions in the act.

For an exemption to be valid, one of the following scenarios must apply:

  • Providing such leave would result in the expenses and financial obligations of the business to exceed available revenues and cause the business to cease operating at a minimal capacity.
  • The absence of the employee(s) would entail a substantial risk to the financial health or operational capabilities of the business because of the specialized skills, knowledge of the business or responsibilities of the employee(s) requesting such leave.
  • There are not sufficient workers who are able, willing and qualified and who will be available at the time and place needed to perform the labor or services provided by the employee(s) requesting leave, and upon whose labor or services are needed for the business to operate at a minimal capacity.

Keep in mind that even if your small business qualifies for an exemption under one of the areas described above, it still must provide up to 80 hours of paid sick leave for employees to use for the other reasons available under the EPSLA as described earlier in this chapter.

Employers do not need to send supporting documentation regarding the decision to deny EPSLA or EFMLEA leave to the U.S. Department of Labor (DOL) under this exemption, but instead should retain such records for its own files.

Leave requests

Because the new law is an amendment to the FMLA, many of the practices from the FMLA will apply. Employees do not need to specifically request their new leave rights, but merely communicate circumstances that a supervisor should recognize as triggering their leave rights. Certifications by a healthcare provider are sufficient to qualify for leave, without further substantiation.

Intermittent leave

Both EPSLA and EFMLA leave may be taken on an intermittent basis provided that the employer and employee agree to the terms of such leave. The basic terms of the mutual agreement would be in the increments in which leave may be taken. Without such an agreement, no leave under the FFCRA may be taken intermittently.

If an employee is teleworking and the company allows the intermittent leave it may be taken on an hourly basis. Employees are to be paid their regular rate of pay for hours worked and 2/3 of their regular rate for leave hours.

Example - An employee making $20/hour works 8:00 a.m. until noon and then takes leave from noon to 4:00 p.m. to care for a child. The employee would receive his or her regular pay of $80 ($20 x 4) and an additional four hours of pay at 2/3 their regular rate ($80 x 2/3 = $53.33) for a total daily compensation of $133.33.

Teleworking employees may take intermittent leave even if the leave is related to the employee or employee's household member having COVID-19 as the employee's being self-isolated takes away the risk of exposure to the employer's other employees.

Similarly, if the employee is not teleworking, but is required to report to the employer's worksite, then the leave must be taken in full-day increments, unless it is leave taken to care for a child whose school or place of care is closed, in which case it may be taken on an hourly basis. This intermittent leave may be granted only in cases where there is an absence of confirmed or suspected COVID-19 in the employee's household. The employer will want to ensure it is taking all precautions to reduce the risk of exposure to its other employees.

If the leave is taken because of the employee having COVID-19, or symptoms thereof, or is caring for an individual suspected of having, or having, COVID-19, then intermittent leave is prohibited under the act. Such leave is prohibited due to the unacceptably high risk that the employee might spread the virus to other employees who are reporting to the employer's worksite.

Unused leave

If an employee is able to return to work prior to exhausting the full two weeks of EPSLA leave or 10 weeks of paid EFMLA leave, he or she may use the remaining leave for another qualifying reason prior to December 31, 2020.

Preexisting leave entitlements

ESPLA and EFMLEA leave are in addition to any existing leave already provided by the employer (i.e., vacation, personal leave, sick time, etc.). There is nothing in the FFCRA that mandates that an employer provide preexisting leave entitlements concurrently with EPSLA or EFMLEA leave. However, an employer may not deny an employee EPSLA or EFMLEA leave on the grounds that an employee has already taken another type of leave or taken leave from another source, including leave taken for reasons related to COVID-19. Regardless of how much other leave an employee has taken up to the date he or she requests EPSLA or EFMLEA leave, the employer must permit the employee to immediately take any and all paid sick leave or expanded family and medical leave to which he or she is entitled and eligible under the EPSLA and the EFMLEA. However, the preceding analysis does not apply to or affect the FMLA's 12 workweeks within a 12-month period cap.

The U.S. Department of Labor (DOL) interprets “existing employer policy” to include a COVID-19 related offering of paid leave that the employer voluntarily issued prior to April 1, 2020, and under which employees were offered more paid leave than under the employer's standard or current policy. The department acknowledges that some employers voluntarily offered and provided such leave to help employees in this time of emergency. Nonetheless, the FFCRA still requires those employers to provide the entirety of the EPSLA and EFMLEA leave to which its employees are eligible, regardless of whether an employee took the additional paid leave the employer voluntarily offered. Doing so is necessary to ensure all eligible employees receive the full extent of paid sick leave and expanded family and medical leave to which they are entitled under the EPSLA and the EFMLEA. However, an employer may prospectively terminate such a voluntary additional paid leave offering as of April 1, 2020, or thereafter, provided that the employer had not already amended its leave policy to reflect the voluntary offering. This means the employer must pay employees for leave already taken under such an offering before it is terminated, but the employer need not continue the offering in light of the FFCRA taking effect.

Continuation of health insurance coverage

While the employee is on leave, the employer must continue the employee’s group health insurance coverage on the same basis as if the employee were still working including medical care, surgical care, hospital care, dental care, eye care, mental health counseling, substance abuse treatment and other benefits coverage. This requirement also applies to benefits provided through a supplement to a group health plan, whether or not the supplement is provided through a flexible spending account or other component of a cafeteria plan.

Should an employer begin providing a new health plan or benefits or changes occur to the health benefits or plans while and employee is taking EPLSA leave or EFMLEA leave, the employee is entitled to the new or changed plan benefits to the same extent as if the employee was not on leave. The employer is required to provide notice of any opportunity to change plans or benefits and if the employee requests changes to coverage it must be provided.

If the leave is unpaid, the employee must pay his or her share of the premium, but even if he or she does not, the employer must reinstate the coverage when the employee returns to work, with no preconditions. (These are essentially the same rules that apply to FMLA leave.)

Multiemployer plans

An employer that is a signatory to a multiemployer collective bargaining agreement may satisfy its obligations under the EFMLEA and the EPSLA by making contributions to a multiemployer fund, plan or other program consistent with its bargaining obligations and its collective bargaining agreement. The contributions must be based on the amount of EPSLA and EFMLEA leave to which the employee is entitled under the applicable provisions of the FFCRA based on each employee's work under the multiemployer collective bargaining agreement. The fund, plan or other program must allow employees to obtain their pay for the leave to which they are entitled under the FFRCA.

Alternatively, an employer that is part of a multiemployer collective bargaining agreement may choose to satisfy its obligations under the FFCRA by means other than through contribution to a plan, fund or program, provided they are consistent with its bargaining obligations and collective bargaining agreement.

Reduction in hours

Employees are not entitled use EPSLA or EFMLEA leave to offset a reduction in hours caused by the lack of available work. Thus, leave cannot be used for hours that the employee is not scheduled to work.

Shutdowns and furloughs

Under the DOL's FAQs, employees are not entitled to EPSLA or EFMLEA leave in the event of a shutdown either before or after the effective date of FFCRA, or if they become furloughed. Furthermore, if a worksite closes while an employee is on leave, the employee's paid leave ends on the date of the closure. Employers are encouraged to consult with legal counsel prior to furloughing employees or shutting down a worksite if there are employees out on leave that would be affected by such actions.

Return to work

Generally, when leave is concluded, the employee has the right to return to his or her old job or to an equivalent one. If the employer conducts a layoff that would have included the employee on leave, the employer can deny restoration. There is also a “key employee” exception to the restoration requirement, like the one in the FMLA. Employers with fewer than 25 employees can deny restoration in the case of an employee who is on leave to care for a child in the event of a school closure or closure by the child's caregiver for the following reasons:

  • The position no longer exists “due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a Public Health Emergency during the period of leave.”
  • The employer makes “reasonable efforts” to return the employee to an equivalent position.
  • The employer makes “reasonable efforts” to contact the employee for one year, in the event that an equivalent position becomes available. “The one-year period begins on the earlier of the date the leave related to a Public Health Emergency concludes or the date 12 weeks after the Eligible Employee’s leave began.”

Documentation and recordkeeping

In response to an employee request for leave under the FFCRA, the following documentation in support of the reason for the leave must be compiled:

  • employee's name
  • qualifying reason for requesting the leave, with supporting documentation
  • statement that the employee is unable to work, including telework
  • date(s) for which leave is requested.

The employer also should require the employee to submit supporting documentation:

  • If the leave is for a government-issued quarantine or isolation order, the name of the issuing entity.
  • If the leave is requested because of a recommended quarantine by a healthcare provider, the name of the healthcare provider making that recommendation.
  • If the leave is childcare, the name of the son or daughter; the name of the school, place of care, or childcare provider; and statement that no other suitable person is available to care for the child.

Additionally, the employer may request any information necessary to qualify for tax credits. If the employee fails to provide the requested information, the leave may be denied.

Records must be retained for four years. This includes grants and denials of leave. It also includes all documentation provided by the employee in support of the request for leave. If the employee provided oral statements, the employer is responsible for documenting the reasons and retaining the documentation. In the case of a small business invoking the exemption, the determination by the authorized officer must be retained.

Tax credits

For purposes of the tax credits, the employer must retain the following documentation for four years:

  • how the amount of leave was determined, including “records of work, telework and EPSLA and EFMLEA leave
  • how the amount of qualified health plan expenses that the employer allocated to wages was determined
  • copies of IRS Form 7200s that were submitted to the Internal Revenue Service (IRS)
  • copies of IRS Form 941s that the employer submitted to the IRS (or, if the employer used a third party, “records of information provided to the third-party payer regarding the Employer’s entitlement to the credit claimed” on the form)
  • any other documents supporting the employer’s claim for tax credits.

Posting requirements

The language of the FFCRA requires that each covered employer (even if they live in a state that requires greater protections) must post the FFCRA notice in a conspicuous place on its premises. If an employer has employees reporting to multiple worksites, the notice must be posted at each individual site. The poster can be obtained by clicking the Policies/Forms tab at the top of this chapter or online at:

Telecommuting employees

Since, during this time of coronavirus pandemic, many employees of covered employers are telecommuting and not actually on the premises, the DOL has issued guidance stating that an employer would satisfy the posting requirement by either:

  • emailing or direct mailing the notice to employees
  • posting this notice on an employee information internal or external website.

Those that do not need to be presented with the notice

The notice need not be:

  • provided in languages other than English
  • shared with recently laid-off individuals
  • shared with new job applicants.

New hires

This notice must be conveyed to new hires either by email, direct mail or by posting the notice on the premises or on an employee information internal or external website.

Employer reimbursement

The act provides for a tax credit for employers who have paid employees under the new law. Covered employers qualify for dollar-for-dollar reimbursement through tax credits for qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee that has taken leave under the act for a qualifying reason, up to the appropriate caps as outlined previously. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage.

To take advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form. Employers seeking to submit a claim should visit:

Example 1 - An eligible employer pays $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes withhold from all of its employers and the employer share of Social Security and Medicare. This employer would deduct the $5,000 from the $8,000 normally disbursed to the IRS and under the new law would only deposit the remaining $3,000 on the next regular deposit date.

Example 2 - An eligible employer pays $10,000 in sick leave and is only required to deposit $8,000 in taxes, the employer would use the entire $8,000 of taxes in order to make qualified leave payments and would then file a request for accelerated credit with the IRS for the remaining $2,000.

Qualified health plan expenses

In addition to the credits for wages, employers are also able to receive credits for “qualified health plan expenses” related to that leave. The five things all employers should know about calculating payroll tax credits for qualified health plan expenses under the FFCRA are:

  1. Qualified health plan expenses must be attributable to sick and family leave paid for periods after April 1, 2020. The eligibility period for purposes of determining qualified health plan expenses begins April 1, 2020, and ends on December 31, 2020.
  1. Calculations for the credit may be determined using "reasonable" methods. Employers sponsoring both fully insured and self-insured health plans may use “any reasonable method to determine and allocate the plan expenses.” For fully-insured plans, the IRS suggests employers use either:
  • the COBRA applicable premium for the employee typically available from the insurer
  • one average premium rate for all employees.

For self-insured plans, the IRS suggests a substantially similar method that takes into account the average premium rate determined separately for employees with self-only and other than self-only coverage.

  1. The credits may include both the employer and employee portions of the premium. The amount of qualified health plan expenses used in determining the credits includes both the portion of the cost paid by the employer and the portion of the cost paid by the employee. Thus, the employer receives the payroll tax credit for the entire premium allocable to the employee.
  1. The employer’s method may account for dependents covered under the plan. The IRS has provided for substantial flexibility in allocating qualified health plan expenses to qualified sick and family leave. The IRS guidance notes that employers may attribute more expenses to employees carrying other than self-only coverage. For example, for plans charging extra for spouse-only and family coverage, the guidance allows employers to allocate the additional health insurance expenses.
  1. “Qualified health plan expenses” includes certain other tax-favored plans. The IRS guidance specified that “qualified health plan expenses” only includes certain tax-advantaged plans. For example, the amount of qualified health plan expenses may include contributions to health reimbursement arrangements (HRAs) (including an individual coverage HRA), or health flexible savings account (health FSAs), but does not include employer contributions to health savings accounts (HSAs), Archer MSAs or Qualified Small Employer Health Reimbursement Arrangements (QSEHRAs). Instead, employers sponsoring high deductible health plans (HDHPs) are instructed to calculate the amount of qualified expenses in the same manner as an insured or self-insured group health plan, as applicable.

Employers are encouraged to establish a coding system to differentiate leave taken under FFCRA form other leave or work time, to help support the tax credit. Because the payment levels are different for the different reasons, the company should use different codes, such as CVchild, CVcare or CVemployee, or whatever codes the employer chooses to identify the reason for which the leave was taken.

Enforcement

The EPSLA requirements are enforced by the U.S. Department of Labor (DOL) and the penalties for violations of the Fair Labor Standards Act (FLSA) apply. That means in cases of minimum wage violations, that the claimants could receive double the amount they were due, plus attorneys’ fees, and the DOL may pursue additional penalties. For instance, an employee may maintain, on behalf of himself or herself and any other similarly situated employees, an action in any federal or state court of competent jurisdiction to recover an amount equal to the federal minimum wage for each hour of paid sick leave denied, an additional equal amount as liquidated damages, and an amount for costs and reasonable attorney's fees. Moreover, the Secretary may bring an action against an employer to recover an amount equal to the federal minimum wage for each hour of paid sick leave denied, and an additional equal amount as liquidated damages, or to obtain an injunction against the employer. Finally, in the case of a repeated or willful violation, the employer shall also be subject to a civil penalty for each violation, and liable in an additional amount, as liquidated damages, equal to the minimum wage for each hour of paid sick leave denied.

The enforcement provisions of the FMLA apply to violations of the EFMLEA, with one exception: An employee may not bring a private action against an employer under the EFMLEA if the employer is not otherwise subject to the FMLA.

Employees may file complaints alleging violations of the EPSLA and/or the EFMLEA with the DOL's Wage and Hour Division.