Both the OPM and the largest federal agency, DoD, have issued guidance on a new sick leave entitlement—which took effect April 1 but apparently has not yet been made available by any federal agencies—under the “Families First” Coronavirus relief law.
Fact Sheet: Federal Employee Coverage under the Leave Provisions of the Families First Coronavirus Response Act (FFCRA) (Public Law 116-127, March 18, 2020)
Division E—Emergency Paid Sick Leave Act
Division E of the FFCRA provides up to two weeks (up to 80 hours) of emergency paid sick leave to all Federal civil service employees in specified circumstances related to COVID-19—unless they are in an exempted category as described below. This paid sick leave is in addition to any other paid leave entitlements. Depending on the circumstances, the sick leave is paid at the Fair Labor Standards Act (FLSA)-based regular rate of pay for an employee or two-thirds of that rate (subject to statutory limitations on daily and aggregate cash value of paid leave). Paid sick leave under division E is available for use during the period from April 1, 2020, through December 31, 2020. The Department of Labor issued regulations under the emergency paid sick leave law, and has posted information and guidance on the leave provisions of the Act at https://www.dol.gov/agencies/whd/pandemic.
A Federal agency employing a health care provider or an emergency responder may elect to exclude such employee from coverage under division E.
The Director of the Office of Management and Budget (OMB) may, for good cause, exclude certain categories of Federal employees from coverage under division E.1
Division C—Emergency Family and Medical Leave Expansion Act2
Division C of the FFCRA provides for expanded family and medical leave (“expanded FMLA leave”) during the period from April 1, 2020, through December 31, 2020, because a covered employee (see coverage discussion below) is unable to work in person or telework due to a need to care for the employee’s eligible child (i.e., a “son or daughter” as defined in Department of Labor regulations) because the child’s school or place of care has been closed or the child’s care provider is unavailable as a result of the COVID-19 public health emergency. Division C further provides that the first 10 days of expanded FMLA leave is unpaid leave; however, an employee has the right to substitute either paid sick leave under division E or accrued paid leave for that initial unpaid leave. After the first two workweeks (usually 10 workdays), the employer must provide partially paid leave for any additional expanded FMLA leave (up to 10 weeks)—unless the employee elects or the employer requires the employee to concurrently use certain categories of an employee’s accrued leave (at the normal rate) with expanded FMLA leave, which would allow the worker to receive full pay. The leave is paid at two-thirds of the employee’s FLSA-based regular rate of pay (subject to statutory limitations on the daily and aggregate cash value of paid leave), except that concurrent use of accrued leave is paid at the full amount under the employer’s policies.
This expanded family and medical leave law is regulated by the Department of Labor, which has posted information and guidance on the leave provisions of the Act at https://www.dol.gov/agencies/whd/pandemic.
Coverage of Federal employees under division C depends on several factors:
• The employee must be covered by title I of FMLA, which is codified in title 29, United States Code, and generally administered by the Department of Labor.
• The employee must have been employed for at least 30 calendar days with the employer from whom leave is being requested. (Note: The normal FMLA requirements—that the employee have at least 12 months of service and at least 1,250 hours of service with the employer during the previous 12-month period—do not apply.)
• The employee is not exempted under section 3105 of FFCRA, which allows an employer to exclude from coverage an employee who is a health care provider or an emergency responder.
• The employee is not in a category for which the agency has obtained an exclusion from coverage from the Director of OMB.
Federal Employees Covered by the Expanded Family and Medical Leave Provisions Enacted in Division C of the Families First Coronavirus Response Act (FFCRA)
• Employees of the United States Postal Service or the Postal Regulatory Commission
• Legislative branch employees, except employees of the Government Publishing Office.
• An employee with an intermittent work schedule (i.e., not part-time or full-time, no guarantee of any hours of work in any pay period).
• An employee with a temporary appointment (i.e., an appointment with a time limitation of one year or less).
• An employee of an Executive branch agency who is not covered by title II of FMLA (i.e., title 5 FMLA provisions)—unless the agency has exercised a special personnel authority in statute to exempt its employees from coverage under title I of FMLA (i.e., title 29 FMLA provisions).
Interim Guidance on the Emergency Paid Sick Leave and Emergency Family and Medical Leave Expansion under the Families First Coronavirus Response Act
Emergency Family and Medical Leave. Division C of the Families First Coronavirus Response Act (FFCRA) provides for expanded family and medical leave to covered employees up to 10 weeks of paid leave at the two-thirds rate of pay. A covered employee may invoke leave under title I of the Family and Medical Leave Act of 1993 (FMLA) because the employee is unable to work (or telework) due to a need for leave to care for the employee’s child (under 18 years of age) as a result of the child’s school or place of care has been closed, or the child care provider of the child is unavailable, when related to a public health emergency connected to coronavirus disease 2019 (COVID-19).
Emergency Paid Sick Leave. Division E of the FFCRA provides up to 80 hours of emergency paid sick leave to all Federal civilian employees in specified circumstances related to COVID- 19. This new temporary leave category is in addition to any other paid leave entitlements. An employee qualifies for emergency paid sick leave if the employee is unable to work (or unable to telework) because the employee:
• is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
• has been advised by a health care provider to self-quarantine related to COVID-19;
• is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
• is caring for an individual subject to a quarantine or isolation order or self-quarantine; or
• is caring for a child under (18 years of age) whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19.
For an employee to be eligible for coverage under the Emergency Family and Medical Leave Act, the employee must be employed for at least 30 calendar days prior to the leave request and covered under title I of the FMLA (chapter 28 of title 29, United States Code). Coverage under title I of FMLA applies to DoD employees:
• with an intermittent work schedule (i.e., non-appropriated fund flexible employees on an intermittent work schedule);
• under a temporary appointment (i.e., an appointment with a time limitation of 1 year or
• covered under unique statutory authorities that apply provisions of title I (e.g. certain employees of the Department of Defense Education Activity).
As mentioned above, all DoD civilian employees are eligible for leave under the Emergency
Paid Sick Leave Act
Interim Time and Attendance Procedures
The Defense Finance and Accounting Service implemented the following time and attendance codes for use of the two types of leave under the FFCRA:
• Emergency Family and Medical Leave Expansion Act leave will be coded in time and attendance systems using “LV-Excused Absence” and environmental hazard code “DZ”
• Emergency Paid Sick Leave Act will be coded in time and attendance systems using “LVExcused Absence” and environmental hazard code “DX” for emergency paid sick leave paid at an employee’s full rate of pay, and environmental hazard code “DY” for emergency paid sick leave paid at two-thirds an employee’s rate of pay
These leave codes are not programmed to account for the different rates of pay that may apply, and will not prevent an employee from taking leave over the statutory limits under the FFCRA, nor enforce the statutory caps on daily or aggregate pay. Thus, DoD Components should develop guidance and procedures for employees that make clear leave under the FFCRA may result in debt that will be collected at a later date. Employees will be ineligible to submit a debt waiver for this overpayment.