Employers Beware: Employees Only Get “One Time Use” of Emergency Paid Sick Leave Under Families First Coronavirus Response Act
Dear clients and other friends:
Last spring, Congress passed the Families First Coronavirus Response Act (FFCRA). The FFCRA provides for up to eighty (80) hours of Emergency Paid Sick Leave (EPSL) because of certain conditions, including experiencing COVID-19 symptoms, being subject to a quarantine or isolation order, or caring for others under certain conditions.
With the uptick in requests for EPSL this fall, you should be aware of a little known federal regulation interpreting the FFCRA. Most employers know that employees are entitled to up to 80 hours of EPSL. An employee who took 80 hours of sick leave last spring is not entitled to an additional 80 hours of sick leave this fall. Many employers, however, may not realize that employees who took 80 hours of EPSL while working for a prior employer have exhausted their EPSL entitlement.
The Department of Labor issued a regulation, 29 CFR § 826.160(f), which deals with this subject. The regulation, entitled “One Time Use,” states:
Any person is limited to a total of 80 hours Paid Sick Leave. An Employee who has taken all such leave and then changes Employers is not entitled to additional Paid Sick Leave from his or her new Employer. An Employee who has taken some, but fewer than 80 hours of Paid Sick Leave, and then changes Employers is entitled only to the remaining portion of such leave from his or her new Employer and only if his or her new Employer is covered by the Emergency Paid Sick Leave Act. Such an Employee's Paid Sick Leave would expire upon reaching 80 hours of Paid Sick Leave total, regardless of the Employer providing it, or when the Employee reaches the number of hours of Paid Sick Leave to which he or she is entitled based on a part-time schedule with the new Employer.
An employer is entitled to receive a dollar for dollar payroll tax credit for all EPSL provided by the employer, if the employee meets the criteria for EPSL and the leave is properly documented. EPSL provided beyond the maximum entitlement under the FFCRA will not be eligible for the FFCRA tax credit. Therefore, knowledge of an employee’s prior exercise of EPSL with a previous employer is of importance to his or her current employer.
Two additional items to note. First, if an inquiry is made of an employee as to whether he or she has exercised EPSL rights while employed by a prior employer, care should be taken to not ask for protected medical information.
Second, EPSL rights under the FFCRA expire on December 31, 2020. Currently, there is no extension of that date, although legislation could come at any time either extending the December 31 date or providing new or different emergency leave benefits.
As always, if you have questions about the Families First Coronavirus Response Act, including Emergency Paid Sick Leave, or have any other employment law questions, call me at
316-630-8100, or email me at firstname.lastname@example.org.