As the COVID-19 pandemic continues, employees who took leave earlier in the year may be requesting additional COVID-19-related leave. Employers covered by the Families First Coronavirus Response Act (FFCRA) are again seeking guidance in determining which employees qualify for the emergency sick leave and family leave portions of the FFCRA. In September 2020, the federal Department of Labor (DOL) issued revised regulations that limited the scope of the “health care provider” exemption of the FFCRA, so many healthcare employers must revisit their position on employee eligibility for FFCRA leave.

In particular, employers being asked to provide Paid Sick Leave (PSL) under the FFCRA should determine whether the employee in question has already taken their 80 hours of PSL – whether working for the employer OR whether the employee in question was working for another entity at the time of that paid leave. Most employers realize that employees to whom they granted 80 hours of PSL last spring or during the summer of 2020 are not entitled to a second allowance of PSL now. However, many do not realize that employees who took 80 hours of PSL while working for a previous employer have exhausted their PSL entitlement as well.

The DOL’s regulations provide under 29 C.F.R. Sec. 826.160(f) – titled “One time use” – that “Any person is limited to a total of 80 hours of Paid Sick Leave. An Employee who has taken all such leave and then changes Employers is not entitled to additional Paid Sick Leave from his or her new Employer.” Employers can and should ask employees hired over the past several months whether they have already taken their PSL with a previous employer, before granting PSL.

Of course, providing unnecessary PSL to an employee beyond their maximum entitlement under the FFCRA also will have tax credit implications.