By Sue Jackson and Erin Robles
In response to the COVID-19 pandemic, the Families First Coronavirus Response Act (H.R. 6201) was signed into law by President Trump on March 18, 2020.
The new law provides for two types of leave for employees impacted by COVID-19:
1. Expansion of the Family Medical Leave Act (FMLA) for employees unable to work (or telework) due to school closures or the unavailability of childcare; and
2. Sick leave for employees unable to work (or telework) because of a diagnosis, symptoms, quarantine or self-isolation related to COVID-19, the care of someone under similar conditions, or to care for a child due to a school closure or the unavailability of childcare.
These sweeping new measures aimed at assisting families during the COVID-19 pandemic take effect April 1 and include a sunset provision on December 31, 2020. Both types of leave apply to all public agencies, as well as to private employers with fewer than 500 employees.
Of important note for public sector agencies, employers who employ healthcare providers or emergency responders may elect to exclude such employees from eligibility for these two types of leave. Agencies should assess their personnel needs and consult with their human resources department to consider the application of this exclusionary option. Employees who work as healthcare providers or emergency responders will need to check with their employers for eligibility and other types of leave that may be available per state and local laws and employment agreements.
Employers are required to post and keep posted in a conspicuous place on the premises of the workplace the requirements of the Families First Coronavirus Response Act.
Expansion of FMLA
Generally, the FMLA provides up to 12 weeks of unpaid, job-protected leave in a 12-month period for eligible employees for qualified medical and family reasons. The FMLA applies to public agencies and private businesses of more than 50 employees. Employees must have worked at least 12 months and have at least 1,250 hours of service during the 12 months before leave begins. Qualified medical and family reasons include:
- The birth or placement of a child for adoption or foster care.
- To care for an immediate family member (spouse, child or parent) with a serious health condition.
- When an employee is unable to work because of his/her own serious health condition.
- To care for a spouse, son, daughter, parent or next of kin who is a service member of the United States Armed Forces and who has a serious injury or illness incurred in the line of duty.
The Emergency Family and Medical Leave Expansion Act (the “Expansion Act”), which was passed as part of the Families First Coronavirus Response Act, adds a new qualifying reason for family medical leave to include leave for employees who are unable to work (or telework) due to a need for leave to care for a child (under the age of 18) whose school or childcare facility has closed, or whose childcare provider is unavailable, due to COVID-19. The availability of this new leave has been expanded to include any employee who has worked for the employer for at least 30 days. The expansion of leave only applies to the new childcare provision.
Under the Expansion Act, leave during the first 10 days is unpaid, however, an employee may elect to substitute accrued vacation leave, personal leave, or medical or sick leave. After the initial 10 days, the employee is entitled to paid leave that will generally be two-thirds of the employee’s regular rate of pay based on the number of hours the employee is normally scheduled to work. The rate of pay is limited to $200 per day and $10,000 in the aggregate. When leave is foreseeable, employees are required to provide their employers with notice of leave as soon as practicable.
The Expansion Act does not expand the amount of leave to which an eligible employee is entitled, which continues to be 12 weeks during a 12-month period. Hence, employees who have already exhausted their FMLA leave during the applicable 12-month period are not entitled to any additional FMLA leave related to the new COVID-19 leave. Employees are encouraged to check with their human resources department for other eligible leave that may apply under state or local laws or employment agreements.
Regarding an employee’s return to work after using the expanded FMLA leave, the general FMLA provision that employees be restored to their original job or to an equivalent job with equivalent pay and benefits applies. However, under the Expansion Act, an exception (subject to certain conditions) may apply for small employers with fewer than 25 employees where the position held by the employee no longer exists due to economic conditions or other changes in operating conditions that affect employment and are caused by COVID-19.
Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act (the “Paid Sick Leave Act”), also passed as part of the Families First Coronavirus Response Act, provides employees with two weeks of paid sick leave for immediate use by an employee regardless of how long the employee has been employed. The employer cannot require that an employee use other available time before paid sick leave under this new law and paid sick leave is in addition to any existing paid leave benefit provided by the employer as of the date of enactment.
Under the Paid Sick Leave Act, an employee is entitled to paid sick leave if the employee is unable to work (or telework) for any of the following reasons:
1. To comply with a federal, state, or local quarantine or isolation order related to COVID-19.
2. To comply with a recommendation from a healthcare provider or public official to self-isolate due to COVID-19 concerns.
3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
4. The employee is caring for an individual who is quarantined or advised to self-isolate (under the same conditions as noted in numbers 1 and 2, above).
5. The employee is caring for a child whose school or childcare facility has been closed, or whose childcare provider is unavailable due to COVID-19.
6. The employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.
Under the Paid Sick Leave Act, full-time employees are entitled to 80 hours of paid sick time and part-time employees are entitled to paid sick time based on the average hours worked over a two-week period. Compensation is subject to limitations and capped based on the qualified reason for use. Employees should check with their human resources department for pay calculation. Paid sick time under this Act does not carry over from one year to the next.
Supervisors should contact their human resources department if an employee approaches them about the agency’s application of these new leave policies. Employees who may need either of these new leave provisions should contact their immediate supervisors to discuss available options.
For additional guidance and current information visit the U.S. Department of Labor Website.
About the authors
Sue Jackson is an attorney with Lexipol. She has 25 years of legal experience representing public entities and public safety entities in civil matters relating to negligence, civil rights, and employment law.
Erin Robles is an attorney with Lexipol. She has more than 20 years of legal experience representing local governments with a focus on public safety and labor and employment law.