March 31, 2020

This is the second installment of reporting on the DOL’s Questions and Answers interpreting the FFCRA, which we address in increments. The question for today is whether the FFCRA allows for intermittent leave time. As a preliminary matter, paid sick leave for qualifying reasons related to COVID-19 must occur in full-day increments.

It cannot be taken intermittently because an employee is:

  1. Subject to a Federal, State, or local quarantine or isolation order related to COVID-19
  2. Advised by a healthcare provider to self-quarantine due to concerns related to COVID-19
  3. Experiencing symptoms of COVID-19 and seeking a medical diagnosis
  4. Caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or advised by a healthcare provider to self-quarantine due to concerns related to COVID-19
  5. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services

In any of these situations, other than teleworking, once an employee begins taking paid sick leave, they must continue to take paid sick leave each day.

Until they either:

  1. Use the full amount of paid sick leave
  2. No longer has a qualifying reason for taking paid sick leave

During the web seminar yesterday, I mentioned the option to take this time intermittently when the reason for the leave is that the employee cannot work their normal schedule of hours because of the need to care for a child whose school closed or childcare provider is unavailable, because of COVID-19 related reasons. In which case, the employer and employee may agree that the employee can take expanded family medical leave intermittently while either working or teleworking.

In addition, the Q & A clarifies that the FFCRA does allow for intermittent leave time under the sick leave provisions, other than childcare if the employer permits. Only where the employee teleworks and cannot telework their normal schedule of hours due to one of the qualifying reasons. In that situation, the employer and employee may agree that they can take paid sick leave intermittently while teleworking.

Intermittent leave time can be taken in any increment agreed to by the employer and employee. The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs. The Department supports such voluntary arrangements that combine telework and intermittent leave. If an employer exercises this option, remember that documentation of the actual time worked versus time taken under the leave law is absolutely necessary. Just as under the regular FMLA.

This information is accurate as of March 31, 2020. It is subject to change based on any new legislation.

Anne-Marie L. Storey, Attorney at Law, Rudman Winchell
Anne-Marie Storey, Esq
Rudman Winchell

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