Updated September 21, 2020
If an employee is seeking intermittent leave under the Families First Coronavirus Response Act, employers should examine closely the employee’s circumstances and the specific reason for the leave. Department of Labor guidance emphasizes that where the employee is working and whether the reason for leave involves a case of COVID-19 or similar conditions may determine the availability of intermittent leave under the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“Expanded FMLA”). Specifically, whether intermittent leave is required or available will depend on whether the employee is teleworking or working at the usual worksite, the reason for the leave, and in some cases, whether the employer agrees to permit the leave on an intermittent basis.
No Intermittent Leave for COVID-19, Symptoms of COVID-19, or a Similar Condition, Unless Teleworking
Unless the employee is teleworking, EPSLA Leave for qualifying reasons related to cases of quarantine, isolation, symptoms of COVID-19, or another substantially similar condition, must be taken in full-day increments. Specifically, leave cannot be taken intermittently if the leave is taken because:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee 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
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Unless the worker is teleworking, once EPSLA Leave for these reasons begins, it must continue each day until the employee either 1) uses the full amount of EPSLA Leave, or 2) no longer has a qualifying reason for taking EPSLA Leave. The DOL’s guidance imposes this limitation because the intent of the statute is to provide EPSLA Leave as necessary to limit the spread of COVID-19.
On September 11, 2020, the Department of Labor issued revised regulations (effective September 16, 2020), reaffirming that employees taking leave for the bases identified above may not work intermittently at a worksite, but may only work intermittently through telework.
Intermittent Leave Available for School/Child Care Reasons, if Working On-site and Employer Agrees
For an employee working at his or her usual worksite, intermittent EPSLA Leave and Expanded FMLA Leave may be available in cases in which the employer agrees to intermittent leave and the leave relates to care for a child because his or her school or child care site is closed or child care provider is unavailable.
For example, if the employee’s child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employee may take EPSLA Leave and/or Expanded FMLA Leave on Mondays, Wednesdays, and Fridays to care for his or her child, but work at his or her normal worksite on Tuesdays and Thursdays. The DOL guidance emphasizes that it supports such voluntary arrangements if employers and employees agree to intermittent leave on a day-by-day basis.
In its revised regulations, the Department of Labor reaffirmed that employer consent is a condition for an employee to take intermittent leave related to care for a child because his or her school or child care site is closed or child care provider is unavailable.
Intermittent Leave Available Generally for Teleworking Employees, if Employer and Employee Agree
For teleworking employees, regardless of which qualifying reason is the basis for the leave, EPSLA Leave and Expanded FMLA Leave may be taken intermittently, provided the employer allows it. According to the DOL’s guidance, in these circumstances, intermittent leave may be taken in any increment, provided the employer and employee agree.
For example, if the employer and employee agree on a 90-minute increment, the employee could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.
Where intermittent leave is subject to the employer’s agreement, the DOL emphasizes in its guidance that it is encouraging employers and employees to collaborate to achieve maximum flexibility.
In its revised regulations, the Department of Labor reaffirmed that an employee is permitted to telework intermittently only if the employer consents.
Timothy M. McConville is President of Praemia Law, PLLC. He also authored Triaging Cases under the Federal COVID-19 Leave Laws and What Employers Need to Know About New COVID-19 Leave Entitlements. This article is for general informational purposes only and should not be relied upon or regarded as legal advice. Please contact Timothy McConville at Timothy.McConville@praemialaw.comor 703-399-3603 concerning particular facts and circumstances.