Sadly, too many of my telephone conversations with clients over the past few months have involved layoffs. Furloughs. Elimination of jobs.

Of course, we’ve also discussed the great unknown of when some of these employees will be brought back to work.

At times, questions have arisen over how a furlough might impact an employee who currently is on FMLA leave or has requested FMLA leave for a time during the furlough.

What takes precedence?  The furlough or the FMLA leave?

What is a Furlough?

First things first. Let’s make sure we understand the terminology.

The term “furlough” does not necessarily have a precise legal definition, but it generally refers to a forced period of time off work without pay and is intended to be used for a temporary or limited duration. During the period of furlough, the employee remains employed and typically remains eligible for benefits (depending on the terms of the employer’s policies and plan documents).

During a furlough, the employee has no work schedule, since the employee is not expected to work.  Placement on a furlough assumes – at least at the outset – that the employee will be reinstated to work, though it often is unclear when the employee will be recalled.

Occasionally, the term “temporary layoff” is used to describe a furlough, but don’t be confused.  A temporary layoff in this context does not mean employment is terminated.

How is FMLA applied during a furlough?

Do the FMLA regulations speak to this issue? No.

How about case law? No.

With the caveat that we don’t have a ton of great guidance on this issue, I counsel employers that they cannot exhaust FMLA leave during a furlough for a few reasons:

• Most importantly, and from a practical standpoint, the employee is not scheduled to work during a furlough – naturally, they are on a forced leave of absence that usually is unpaid.  As such, there is no work schedule from which to take FMLA leave.Think of it similar to a teacher who is on FMLA leave at the time the school year ends and summer break begins. When summer break begins, the teacher no longer is expected to come to work, even though the school has not necessarily closed operations. As of summertime, the teacher has no work schedule, similar to a furlough. Because there is no work time, there is no schedule from which to take leave. Therefore, the employer does not exhaust the employee’s FMLA leave time over the summer. Leave could pick up again in the fall when the employee is expected to return to work (so long as he/she has FMLA leave remaining).Same concept here. Because there is no work schedule from which to take leave during a furlough, FMLA leave cannot be exhausted.
• The FFCRA is a bit persuasive here. The DOL has advised that furloughs cut off an employee’s use of paid sick leave and paid FMLA leave under the Families First Coronavirus Response Act (FFCRA). In FAQ #26-28 of the DOL’s guidance to FFCRA leave, the DOL very clearly takes the position that FFCRA leave is not available during periods of furlough or closure of the workplace.  This leads to the conclusion that FMLA should be treated in the same fashion, since FFCRA leave is interpreted through the lens of FMLA.
• It’s also persuasive that federal agencies take the position that federal employees cannot take FMLA leave during a furlough, leading us further to the conclusion that the same applies to private-sector employees.  See, for instance, the Treasury’s position on FMLA during furloughs.

Does an Employee Accrue Hours Worked While on Furlough?

Simply put, no. This is a tough reality for employees. As we know, an employee must have worked 1,250 hours at the time FMLA leave is to begin. When determining whether an employee has worked the requisite 1,250 hours in the previous 12 months to be eligible for FMLA leave, an employer must account for hours actually worked by the employee within the meaning of the Fair Labor Standards Act. 29 CFR § 825.110(c). When an employee is on furlough, of course, they are not performing work for the employer, so keep in mind they are not accruing any hours toward the 1,250. (H/T Sarah Simmons!)

Be Mindful of State and Local Paid Sick Leave Laws

Prior to the COVID-19 pandemic, it was fairly clear that employees could not use state/local paid sick leave during a time they were on furlough.

However, a handful of locations now allow paid sick leave (PSL) to be used during the pandemic.  Take, for instance, San Francisco’s emergency PSL, which can be used by employees who are furloughed, or Philadelphia’s PSL, which can be used if the employee “would have been eligible to use . . . sick leave had [the employee] not been laid off or furloughed.”

Before denying state/local paid sick leave to an employee during this pandemic, be sure that you are well aware of the local guidance on how PSL is paid out if an employee is furloughed.