There's a need for clarification in a couple of areas:
1. Clarification is needed regarding the issue of substitution for EFMLEA. The preamble of the regulations are clear that existing FMLA rules apply; that employers can require substitution during the first two weeks since it's unpaid, but it has to be employee/employer agreement for the remainder of leave since it's paid. And that makes sense. But the regulations themselves are not as straightforward and clear so many look to the published FAQ for that clarity Unfortunately, question #31 of the DOL FAQ states that "After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA, however, you may elect—or be required by your employer—to take your remaining expanded family and medical leave at the same time as any existing paid leave that, under your employer's policies, would be available to you in that circumstance." That directly contradicts what I believe the regulations intend to communicate.
2. How do employers handle situations where they doubt the validity of leave taken under the EFMLEA? Much of the "documentation" is an employee's attestation of the facts supporting the need and qualification of leave. If a situation arises that creates doubt for the employer, what are their options? The FMLA obviously has provisions for recertification, but they assume the reason for leave is medical so doesn't really fit here. Since this is up to 12 weeks of leave, 10 of it paid, and we're coming in to summer (when school is out of session rather than closed), I anticipate there may be situations where employees take advantage of, or abuse, this new reason for leave.
3. Can employees choose when to use EPSL or can the employer require its use? For example, can an employee choose to go unpaid rather than take EPSL even if out of work for a qualifying reason? Or can they choose to take another employer-paid bank of leave first (e.g. PTO) then take EPSL?