In follow-up to our prior summary on the newly issued “Temporary Rule” by the Department of Labor, Wage and Hour Division, please find a discussion of the newly created FFCRA “intermittent leave” under the Temporary Rule.

The FFCRA did not specifically permit (or prohibit) either Emergency Paid Sick Leave (EPSL) or Emergency Extended FMLA leave (EFMLEA) to be taken on an intermittent basis.  The DOL, however, has imported “certain concepts” from its pre-existing FMLA regulations.  It has also revised these rules and added additional limitations in order to make them compatible with the Congressional objective with the passage of the FFCRA (slowing the spread of the COVID-19 outbreak). 

The final regulation is located at 29 CFR § 826.50.  It can be summarized as follows:

• Intermittent leave is permissible, but only if both the employee and employer agree to the use of the leave on an intermittent basis.This agreement may be memorialized in writing, but this is not required.The regulation requires only that there be a “clear and mutual understanding between the parties.”
• The parties must also agree on the increments of time in which leave may be taken.
• Employees that telework have broad flexibility to agree on arrangements that balance the needs of each teleworking employee with the needs of the employer’s business (again, subject to the agreement between the employer and employee).
• However, employees that still are reporting to a physical worksite are more limited in the use of intermittent leave.This is due to legislative intent to control the spread of the COVID-19 virus, and generally such an employee may only use leave intermittently where there is aminimal risk that the employee will spread COVID-19 to other employees at an employer’sworksite.
• Specifically, if the parties agree, an employee reporting to a physical site may take up to the entire portion of EPSL or EFMLEA leave intermittently to care for a son or daughter whose school or place of care is closed , or whose child care provider is unavailable due to COVID-19.Under such circumstances, the leave may be taken in any increment agreed to by the parties.
• However, an employee reporting to a physical location MAY NOT USE EPSL  intermittently when the need for leave is because the 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 is taking leave to obtain 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.

Again, this is due to the fact that such an “employee is, may be, or is reasonably likely to become, sick with COVID-19, or is exposed to someone who is, may be, or is reasonably likely to become, sick with COVID-19.”  Once such an employee begins taking paid sick leave for one or more of these qualifying reasons, the employee must continue to take paid sick leave each day until the employee either uses the full amount of paid sick leave or no longer has a qualifying reason for taking paid sick leave.

• Lastly, if the employer and employee agree to allow intermittent leave, only the amount of leave actually taken may be counted toward the employee’s leave entitlements.

We will continue to provide blasts regarding the most relevant highlights of the new Temporary Rule in the coming days.  As always, if you have questions or need assistance applying these new rules to your workforce please do not hesitate to contact our Employment Practice Group at 1-888-488-2638.