Not this Independence Day. Although, it does feel like it this year, amirite?
Yesterday, a reader emailed me.
“Hey Eric, Have an employee out on COVID leave… Friday’s is a holiday, how do we pay? COVID or Holiday?”
I’m going to assume that this is one of those hypothetical questions for a friend. (And, next time, the reader’s company will engage me as outside employment law counsel to answer this question. Hint. Hint.)
Since I’m feeling my three-whiskey dessert charitable, let’s see what I can do to help this reader’s friend.
Expanded FMLA leave.
The Families First Coronavirus Response Act requires certain employers to provide employees with paid sick leave (PSL) or expanded family and medical leave (FMLA+) for specified reasons related to COVID-19. Let’s start with the latter.
Employees with at least 30 calendar days of service can use FMLA+ if unable to work due to a bona fide need for leave to care for a child whose school or child care provider (or summer camp) is closed or unavailable for reasons related to COVID-19.
FMLA+ is part of the Family and Medical Leave Act. The Department of Labor has addressed (here) what happens when a holiday falls during a week in which an employee is on FMLA:
When a holiday falls during a week in which an employee is taking the full week of FMLA leave, the entire week is counted as FMLA leave. However, when a holiday falls during a week when an employee is taking less than the full week of FMLA leave, the holiday is not counted as FMLA leave, unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.
When an employee’s schedule varies so much that the employer is unable to determine how many hours the employee would have worked during the week the employee takes FMLA leave, the employer may use a weekly average to calculate the employee’s FMLA leave entitlement. The weekly average is determined by the hours scheduled over the 12 months prior to the beginning of the leave and includes any hours for which the employee took any type of leave.
Presumably, the same rules apply for an employee using FMLA+.
But, must companies provide these employees with holiday pay? For that answer, let’s head over to Jeff Nowak’s FMLA Insights for some, well, FMLA insight:
[T]he answer is fairly straightforward: treat them the same way you would treat another employee on non-FMLA leave….[Y]ou first look to treat the leave in the same manner you treat other forms of non-FMLA leave. If FMLA is being taken in conjunction with paid leave, look to the manner in which you treat employees on paid leave.
Ok, that makes sense.
Paid Sick Leave.
Unlike FMLA+, the PSL provisions of the FFCRA are not part of the FMLA. So, the FMLA rules don’t apply. Further, the FFCRA is silent about the interplay between FFCRA leave and holidays. Moreover, the DOL has not addressed this issue in either its temporary final rule or frequently asked questions. So, we need to get creative.
Or maybe not so much.
Likely, the same holiday pay logic applies here as it does to FMLA+. Heck, the PSL provisions have an anti-retaliation provision, and it’s not worth flirting with that, is it?
So, that leaves open the question of whether someone who is on PSL has to use a PSL day if the office is closed tomorrow.
PSL requires that certain employers provide up to 80 hours of paid sick leave to employees who need to take leave from work for certain specified reasons related to COVID-19.
On the one hand, once an employee starts taking PSL, s/he must continue to take paid sick leave each day until the employee either (1) uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave.
On the other hand, Congress didn’t intend that PSL displace any rights that employees may otherwise have to employer-provided benefits such as PTO. So, if other employees get a paid day off, it would make sense to provide the same benefit to an employee on PSL, without also requiring that employee use a PSL day. Even if you just give an unpaid day off to your staff on Friday as a ***cough*** benefit, logic dictates that you would do the same for an employee on PSL.
Speaking of which, I’m probably going to take an unpaid day off from blogging tomorrow, which is pretty much every day here at The Employer Handbook.
***Sigh***
Fortunately, I still have my side-hustle as a management-side employment lawyer.
Have a lovely holiday weekend.