COVID-19: FMLA Leave Expansion and Emergency Paid Sick Leave
The pandemic has resulted in the enactment of emergency federal legislation providing additional the amendments are part of the Families First Coronavirus Response Act (H.R. 6201), and the FMLA expansion portion is called the Emergency Family and Medical Leave Expansion Act. Additional provisions of the law that provide employer-paid sick leave are called the Emergency Paid Sick Leave Act.
These laws take effect fifteen days from the enactment of the law (March 18), which will be April 1st. Both of these provisions will be temporary, ending on December 31, 2020.
FMLA Leave Expansion
To be eligible for this type of FMLA leave, employees must have been employed only for thirty days (not the usual eligibility criteria of 1,250 hours in the preceding year). The thirty days mean on the payroll for the 30 calendar days immediately prior to when the leave would begin.
Reasons for Leave
1. If a child’s school or place of care is closed, or the
child care provider is not available, and the employee is unable to
work or telework because they must care for the minor
child, the employee may use leave.
Pay for leave after first ten days
The first ten days of this FMLA leave is unpaid, although the employee may elect to substitute vacation, sick, personal or medical leave for unpaid leave. They also may use the Emergency Paid Sick Leave Act described below. After that, the leave will be paid for up to twelve weeks.
After the first ten days, employees are to be paid at a rate of 2/3rds their regular rate of pay for the number of hours they normally work. The amount of pay for this sick leave is capped at not more than $200 per day, and continues up to a maximum of $12,000 (this is for the entire 12-week period, including the two weeks of leave which may be the emergency paid sick leave provided in the Act.
There is an averaging process provided in the law to determine the amount to be paid to an employee who works a varying number of hours.
Documentation
Employers may require documentation in support of expanded family medical leave just as you would for other FMLA requests.
Intermittent leave
The expanded FMLA leave for child care does not require that employers permit the leave to be taken intermittently. However, if the employer agrees to do so, the leave may be taken intermittently.
Insurance benefits
Employers must maintain health insurance during the period of expanded FMLA leave for child care.
Right of restoration
Employers must restore the employee to an equivalent position unless the position has been eliminated or reduced due to economic reasons or other operating conditions that affect employment as a result of the public health emergency.
An “equivalent position” is one that provides equivalent benefits, pay, and other terms and conditions of employment. If the efforts of the employer to do so are unsuccessful, employers must contact them if such a position does become available for a period of one year.
Paid Sick Leave
Another part of the Families First Coronavirus Response Act is the Emergency Paid Sick Leave Act. This leave applies to school districts and, like the expanded FMLA provisions, it expires December 31, 2020.
Employers must immediately provide, as needed, eighty hours of paid sick leave to full time employees (regardless of the length of their employment) or an average of hours worked over a two-week period for part-time employees who meet the following criteria:
- Unable to work (or telework) due to an isolation or quarantine order related to COVID-19 (federal, state or local order);
- Has been ordered by a health care professional to self-quarantine due to concerns related to COVID-19;
- The employee is seeking medical diagnosis and is having symptoms of COVID-19;
- The employee is caring for an individual (law does not specify that it has to be a family member) subject to such an order
- The employee’s child’s school or place of care is closed or child care provider is unavailable (same reason as FMLA expansion), or
- The employee is experiencing any substantially similar condition as identified by the Secretary of Labor or Treasury.
For the first three conditions, hourly pay is the greater of the employee’s regular rate of pay, the federal minimum wage, or local/state minimum wage. This is subject to a maximum of $511/day, up to $5,110 for the entire paid emergency sick leave period.
For the conditions from 4-6 on the list, pay is capped at 2/3 of the greater of the amounts listed above. This is subject to a maximum of $200 per day, up to $2,000 over the two week period.
The leave is subject to a few conditions, including that:
- The employee may not be required to find another employee to cover the hours they are using for sick time.
- The employee may be required to return to work at the next scheduled shift after the need for sick leave ends.
- The leave does not carry over from one year to the next.
- The employer also may not require use of other paid leaves before using this emergency sick leave.
This leave is limited to two weeks for any combination of the reasons listed above. The leave is not retroactive (prior to April 1, the effective date) and the employee may still use the leave even if the employer gave the employee paid leave for similar reasons prior to April 1, 2020.
Employers must post a notice of the availability of this sick leave. This notice is available at:
dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
Violation of the provisions of the emergency paid sick time would be a violation of the Fair Labor Standards Act for failure to provide minimum wage and subject to the penalties of the FLSA.
Stay tuned
More changes and new provisions are possible as lawmakers and federal and state agencies respond to this situation. There are issues of interpretation with this new law that may be dealt with in additional legislation, future regulations, or a FAQ from the Wage and Hour Division.
This article will be updated to reflect changes in these particular provisions as needed.