Diane Waters Contributes to SHRM Article on COVID-19-Related Employee Leave

Dallas, Tex. (November 17, 2020) – Dallas Partner Diane L. Waters recently contributed to an article published by the Society for Human Resource Management (SHRM) on legal questions concerning COVID-19-related employee leave titled “COVID-19-Related Legal Questions Keep Coming.” Ms. Waters provided her insights for the portions of the article addressing leave under the Families First Coronavirus Response Act (FFCRA), including (1) whether employers may require employees to use their vacation or sick leave before taking FFCRA emergency paid sick leave (EPSL) and (2) whether employers may require employees to use paid sick leave while they take FFCRA expanded family and medical leave (EFML).

Ms. Waters indicated that leave under the Emergency Paid Sick Leave Act (EPSLA) pertains specifically to leave necessitated by COVID-19 and is only available through December 31, 2020. Employers may not require employees to exhaust vacation, personal, medical, or sick leave available pursuant to a company policy, state or local law, or a collective bargaining agreement before taking leave under the EPSLA. She further noted that as EPSL must be provided to employees in addition to any other form of paid leave that may be available, employers also may not require paid vacation, personal, medical, or sick leave to run concurrently with, or cover the same hours as, EPSL.

In regard to EFML, Ms. Waters indicated that whether employers can require concurrent use of employer-provided paid leave depends upon the circumstances. She noted that during the unpaid portion of EFML, which is the first two weeks, employees may use EPSL or any other employer-provided paid leave. An employer, however, may not require that employees do so. In addition, once the paid portion of EFML begins, employers may require company-provided paid leave to run concurrently with EFML while employees care for children whose school or other place of care has closed or is unavailable for COVID-19-related reasons. Ms. Waters further noted, “[a]s more states and local jurisdictions enact or expand upon various forms of paid leave, it will be critical for employers to understand the interplay between federal, state and local leave laws.”

Ms. Waters is a member of Lewis Brisbois’ Labor & Employment Practice and COVID-19 Response Team. Her practice focuses on providing general employment counseling and advice on a broad array of issues impacting the employer/employee relationship, as well as representing employers before federal and state administrative agencies.

You can read the full SHRM article here. You may also read another COVID-19-related SHRM article to which Ms. Waters and San Diego Partner Rita Kanno contributed here, and a COVID-19-related SHRM article to which New York and Newark Partner Bradley Bartolomeo recently contributed here.