What Employers Need to Know about the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act

On March 18, 2020, the United States Senate passed the Omnibus Families First Coronavirus Response Act, that includes the Emergency Family and Medical Leave Expansion Act ("EFMLEA") and the Emergency Paid Sick Leave Act ("EPSLA"), with which employers must immediately familiarize themselves.  The following is a summary of the key provisions of the EFMLEA and the EPSLA, which are expected to be signed into law by the President.

The Emergency Family and Medical Leave Expansion Act:

Amends and expands the Family and Medical Leave Act ("FMLA") on a temporary basis to provide certain employees with the right to job-protected paid emergency FMLA leave in connection with the coronavirus pandemic, as outlined below.

Coverage

Covers private sector employers with fewer than 500 employees (and all public sector employers).  Changes the FMLA coverage threshold of 50 or more employees.

Eligibility

Applies to employees who have worked for the employer for at least 30 consecutive calendar days prior to the designated leave.  Changes the FMLA eligibility requirement of employment for 12 consecutive months or 1,250 hours.

Exclusions and Exemptions

The Department of Labor may exclude healthcare providers and emergency responders from the definition of employees who are permitted to take leave.

The Department of Labor may exempt small businesses with fewer than 50 employees, if the required leave would jeopardize the viability of their business.

Qualifying Need

To allow an eligible employee, who is unable to work or telework, to care for the employee's child under age 18, if the child's school or place of care is closed, or the child care provider is unavailable, due to a public health emergency.

Paid Leave Rules

The first 10 days of emergency FMLA leave may be unpaid.

During this 10-day period, an employee may elect to substitute any accrued paid leave to cover some or all of the 10-day unpaid period.

After the 10-day period, the employer is required to pay full-time employees at two-thirds of their regular rate of pay for the number of hours they would otherwise be normally scheduled.

Part-time employees are paid on the basis of the average number of hours the employee worked for the 6 months prior to taking emergency FMLA leave.

Limitation

The emergency FMLA paid leave entitlement is limited to $200 per day and $10,000 in the aggregate per employee.

Job Restoration

Covered employers with 25 or more employees are under the same FMLA obligation to restore any employee who has taken emergency FMLA leave to the same or an equivalent position upon their return to work from leave.

Covered employers with fewer than 25 employees are excluded from this requirement, provided that the employee's position no longer exists after the emergency FMLA leave due to an economic turndown or other circumstances caused by a public health emergency during the leave.

This exclusion is subject, however, to the employer making reasonable attempts to return the employee to an equivalent position, and requires the employer to make efforts to return the employee to work for up to a year following the leave.

Retaliation and Discrimination Prohibited

It is unlawful for an employer to retaliate or discriminate against an employee because he or she exercised his or her rights under the EFMLEA.

Effective Date

The EFMLEA became effective on April 2, 2020.

Duration

The EFMLEA remains in effect until December 31, 2020.

The Emergency Paid Sick Leave Act:

Provides certain employees with the right to take up to 80 hours of paid sick leave in connection with the coronavirus pandemic, as outlined below.

Coverage

Covers private sector employers with fewer than 500 employees (and all public sector employers).

Qualifying Reasons

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

2.  An employee who is advised by a health care provider to self-quarantine due to COVID-19 concerns.

3.  An employee who is experiencing COVID-19 symptoms and seeking medical diagnosis.

4.  An employee who is caring for an individual subject to a federal, state, or local quarantine or isolation order related to COVID-19.

5.  An employee who is caring for the employee's child, if the child's school or place of care is closed or the child's care provider is unavailable due to a public health emergency.

6.  An employee who is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Paid Leave Requirement

To provide eligible full-time employees (regardless of employment duration) with 80 hours of paid sick leave at the employee's regular rate of pay.

Or to provide full-time employees who are eligible under qualifying reasons 4, 5, or 6 above with paid sick leave at two-thirds of the employee's regular rate of pay.

Limitations

The emergency paid sick leave entitlement is limited to $511 per day, up to $5,110 total per employee for their own use, and $200 per day, up to $2,000 total to care for other individuals or for any other substantially similar condition.

No carry-over to the following year is permitted.

Not Concurrent with Other Leave

The emergency paid sick leave may be in addition to any other paid sick leave currently provided by the employer.

Part-Time Employees

Emergency paid sick leave for part-time employees is calculated based on the average number of hours the employee worked for the 6 months prior to taking emergency paid sick leave.

Exceptions

There is an exception for employees who are health care providers or emergency responders, at the election of their employers.

Interrelationship Between the EPSLA and the EFMLEA

A covered employer is required, at the request of an eligible full-time employee, to pay the full-time employee 80 hours of EPSLA emergency sick leave for the initial 10-day period of unpaid leave under the EFMLEA.

Retaliation and Discrimination Prohibited

It is unlawful for an employer to retaliate or discriminate against an employee because he or she exercised his or her rights under the EPSLA.

Effective Date

The EPSLA became effective on April 2, 2020.

Duration

The EPSLA remains in effect until December 31, 2020.