Essential Guidance for Employers on COVID-19 Paid Sick Leave and Expanded Family and Medical Leave

On March 18, 2020, the President signed into law the Families First Coronavirus Response Act ("FFCRA"), which creates two new emergency paid leave requirements in response to the COVID-19 global pandemic.  The Emergency Paid Sick Leave Act ("EPSLA") entitles certain employees to take up to two weeks of paid sick leave.  The Emergency Family and Medical Leave Act ("EFMLEA") permits certain employees to take up to twelve weeks of expanded family and medical leave, ten of which are partially paid.  On March 27, 2020, the President signed into law the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"), which amended certain provisions of the EPSLA and EFMLEA.

The FFCRA generally covers private employers with fewer than 500 employees and certain public agencies with one or more employees.

However, small employers with fewer than 50 employees may qualify for an exemption from the requirement to provide paid leave due to school, place of care, or child care provider closings or unavailability, provided that the leave payments would jeopardize the viability of their business as a going concern.

The emergency paid sick leave and expanded family and medical leave requirements became operational on April 1, 2020, effective on April 2, 2020, and will expire on December 31, 2020.

THE EMERGENCY PAID SICK LEAVE ACT

Qualifying Reasons

The EPSLA requires employers to provide paid sick leave to employees who are unable to work or telework for any one of six qualifying COVID-19 related reasons, as follows:

1.  The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

2.  The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

3.  The employee is experiencing symptoms of COVID-19 and is seeking a medial diagnosis;

4.  The employee is caring for an individual who is subject to an order described in 1 above, or who has been advised as described in 2 above;

5.  The employee is caring for his or her son or daughter whose school or place of care has been closed or whose child care provider is unavailable due to COVID-19 related reasons; or

6.  The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employer Coverage

Private employers with fewer than 500 employees and public agencies with one or more employees are covered by the EPSLA.  The Secretary of Labor, however, has the authority to exempt by rulemaking certain small employers with fewer than 50 employees from providing paid sick leave to an employee who is unable to work because the employee is caring for his or her son or daughter whose school or place of care has been closed or whose child care provider is unavailable due to COVID-19 related reasons, if compliance with this requirement would jeopardize the viability of the business as a going concern.

Employee Coverage

The EPSLA applies to employees of covered employers regardless of how long an employee has worked for the employer.

Exclusion for Employee Health Care Providers and Emergency Responders

However, employers may exclude employees who are health care providers or emergency responders from taking paid sick leave.  Additionally, the Secretary of Labor has the authority to exclude by rulemaking certain employees who are health care providers and emergency responders from the requirement of the EPSLA.

Leave Entitlement

The EPSLA entitles full-time covered employees to up to 80 hours of paid sick leave, and generally entitles part-time employees to up to the number of hours that they work on average over a two-week period.

An employee who takes paid sick leave because he or she is subject to a quarantine or isolation order, has been advised to self-quarantine by a health care provider, or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis, the EPSLA is entitled to paid sick leave at the employee's regular rate of pay, up to $511 per day and $5,110 in the aggregate. 

An employee who takes paid sick leave for any of the other qualifying reasons under the EPSLA is entitled to be paid two-thirds of that amount, up to $200 per day and $2,000 in the aggregate.

An employer may not require an employee to use other paid leave provided by the employer before the employee uses the emergency paid sick leave. 

Violations

Employers who fail to provide paid sick leave as required are considered to have failed to pay minimum wages in violation of the Fair Labor Standards Act ("FLSA"), and that such employers are subject to enforcement proceedings under the FLSA.

Retaliation Prohibited

It is unlawful for an employer to retaliate against an employee who takes paid sick leave under the EPSLA, files any complaint under or relating to the EPSLA, institutes any proceeding under or relating to the EPSLA, or testifies in any such proceeding.

Poster Requirement

Covered employers must post a notice of employees' rights under the EPSLA.

Does not Offset other Leave

The EPSLA does not diminish the rights or benefits of an employee under any existing employer policy or other law.

No Payment for Unused Leave on Separation

An employer is not required to reimburse an employee for unused emergency paid sick leave on the employee's separation of employment.

THE EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

Qualifying Reasons

The EFMLEA requires employers to provide expanded partially paid family and medical leave to eligible employees who are unable to work because the employee is caring for his or her son or daughter whose school or place of care is closed or whose child care provider is unavailable due to a public health emergency with respect to COVID-19.

Employer Coverage

The EFMLEA covers private employers with fewer than 500 employees.

Small Business Exemption

However, the Secretary of Labor has the authority to exempt by rulemaking employers with fewer than 50 employees from the EFMLA's requirements, if compliance would jeopardize the viability of the business as a going concern.

Employee Coverage

The EFMLA applies to employees of covered employers who have been employed by the employer for at least 30 calendar days.

Exclusion of Employee Health Care Providers and Emergency Responders

Employers may, however, exclude employees who are health care providers or emergency responders from taking expanded family and medical leave.  In addition, the Secretary of Labor has the authority to exclude by rulemaking employees who are health care providers and emergency responders from the requirements of the EFMLEA.

Leave Entitlement

An employee may take up to twelve weeks of extended family and medical leave for a qualifying reason.

First Two Weeks

The first two weeks of EFMLEA leave are unpaid.  However, an employee may substitute EPSLA paid sick leave or paid leave under an existing employer policy for the two weeks of unpaid EFMLEA leave.

Next Ten Weeks

The following period of up to ten weeks of expanded family and medical leave must be paid at two-thirds of the employee's regular rate of pay.

Caps

The total EFMLEA payment per employee for the ten-week period is capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000, when combined with two weeks of paid leave taken under the EPSLA.

Concurrent Leave

An eligible employee may elect to use, or an employer may require that an employee use, expanded family and medical leave concurrently with any leave offered under the employer's policies that would be available for the employee to take care of his or her child, including vacation, personal leave, or paid time off.

Employee Notice Obligations

If an employee's need for expanded family and medical leave is foreseeable, the employee is required to provide the employer with notice of the leave as soon as practicable.

Job Protected Leave

Employers must restore employees who take EFMLEA leave to their positions or equivalent positions upon their return from leave, subject to certain exceptions.

However, employers with fewer than twenty-five employees are exempted from the restoration requirement under certain circumstances.

Retaliation, Interference, Discrimination Prohibited

The Family and Medical Leave Act's general prohibitions against retaliation, interference, and discrimination apply to the EFMLEA.