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Can employees take intermittent leave under the FFCRA?


Introduction to the Families First Coronavirus Response Act

On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law. Among other things, the FFCRA requires certain employers to provide its employees with paid leave for qualifying reasons related to COVID-19. There are two different types of leave: the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”).

The EPSLA provides up to 80 hours of paid leave for employees subject to quarantine or who are caring for another individual subject to quarantine, among other reasons. The EFMLEA amends the Family and Medical Leave Act of 1993 (“FMLA”) to provide paid leave for employees who need to care for their child whose school or place of care is closed because of COVID-19. Both the EPSLA and the EFMLEA permit employees to take leave intermittently. However, due to Congress’ objective to slow the spread of COVID-19, additional restrictions were placed on an employee’s ability to take intermittent leave. The primary questions, which may limit an employee’s ability to take intermittent leave, are (i) the reason for the employee’s request for leave and (ii) whether the employee is teleworking or reporting to the office.

Basic condition for intermittent FFCRA leave

One basic condition of taking intermittent leave pursuant to the FFCRA is that the employer and employee must agree to the intermittent leave arrangement. Absent agreement, the employee cannot take EPSLA or EFMLEA intermittently. While the FFCRA does not require the agreement be in writing, there must be a clear understanding between the parties. Specifically, the parties must not only agree to the leave, but also on the increments of time in which the leave will be taken.

When can employees take intermittent FFCRA leave?

To determine whether an employee can take FFCRA leave intermittently, the first question is whether the employee is teleworking or reporting to the office. If an employee is teleworking, he or she can take EPSLA and EFMLEA intermittently for any of the qualifying reasons permitted by the FFCRA. Conversely, if an employee continues to report to an employer’s worksite, that employee may only take EPSLA and EFMLEA intermittently to care for the employee’s child whose school or place of care is closed, or whose child care provider is unavailable, because of reasons related to COVID-19. If the employee is still reporting to work, that employee cannot take intermittent leave because he or she is subject to quarantine or caring for an individual subject to quarantine, even if the parties agree.

Congress makes this distinction because an employee who is teleworking presents no risk of spreading COVID-19 to colleagues. Similarly, in the context of school or place of care closures, absent confirmed or suspected cases of COVID-19, there is a reduced risk of exposure or spread. Considering Congress’ intent, if employees were permitted to take intermittent leave for one of the other permitted reasons, the risk of exposure or spread would drastically increase. Lastly, only leave actually taken is counted against the employee’s permitted time off.

If you feel your rights under the Families First Coronavirus Response Act have been violated, or if you have any questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724.

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