Guidance from DOL to Interpret FFCRA: Intermittent Leave

March 31, 2020

This is the second installment of reporting on the DOL’s Questions and Answers interpreting the FFCRA, which we are addressing 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 be taken in full-day increments and cannot be taken intermittently because an employee 1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; 2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; 3) is experiencing symptoms of COVID-19 and seeking a medical diagnosis; 4) is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or 5) is 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, he/she must continue to take paid sick leave each day until he/she either (1) uses the full amount of paid sick leave or (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 because the employee is prevented from working his/her normal schedule of hours because of the need to care for a child whose school or place of care is closed, or child care 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 child care) if the employer permits it but only where the employee is teleworking and is unable to telework his/her normal schedule of hours due to one of the qualifying reasons. In that situation, the employer and employee may agree that the employee 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, and the Department is supportive of 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, and is subject to change based on any new legislation.

Anne-Marie L. Storey, Attorney at Law, Rudman Winchell
Anne-Marie Storey, Esq
Rudman Winchell
207-947-4501