New Paid Emergency Leaves for COVID-19 Related Situations
Highlights of new leave based on FFCRA
Last week, Congress passed the final version of the Families First Coronavirus Response Act (FFCRA), which created two new forms of leave based on conditions related to the COVID-19 pandemic: (1) Emergency Paid Sick Leave (EPSL) and (2) leave under the Emergency Family Medical Leave Expansion Act (EFMLEA) (sometimes also called Public Health Emergency Leave (PHEL)).
Here are some highlights of the new leaves provided by the FFCRA:
Most All Small Businesses are Included – for both new emergency leaves, almost all employers with less than 500 employees must provide both EPSL and EFMLEA leave for employees who are eligible. This means that many employers who are not required to provide standard FMLA (only employers with 50 or more employees) or any other type of leave (no legal requirement to provide) MUST provide these leaves.
A Larger Number of Eligible Employees – the eligibility standards for EPSL and EFMLEA are not the same, but both cover more employees than standard FMLA and most employer-provided leave allowances. For EPSL, ALL employees are eligible.
Leaves are Paid – this is the first time that federal law has ever REQUIRED paid leave. Even employers that must provide standard FMLA have not had to do so on a paid basis.
Pay Under Each Leave is Different – EPSL is paid at full, regular rate for 80 hours (for full-time employees); EFMLEA is unpaid for the first ten days, and then payment for leave must be at least 2/3rd of regular pay. The caps on how much leave pay can be paid vary depending on what type of leave is being used and the reason for the leave.
Ability to Work Remotely Disqualifies Employee – in order to be eligible for either type of paid leave, the employee must not be able to either work on-site or remotely (or “telework”).
Employer Reimbursement – payments for both leaves will be reimbursed by the federal government by way of tax credits for the employer.
Comparison of changes to FMLA coverage
Covered Employers
Standard FMLA: >50 employees at locations within 75 miles
Emergency FMLA: <500 employees
Emergency Paid Sick Leave: <500 employees
Eligible Employees
Standard FMLA: Must have worked for employer more than 1250 hours in the previous 12 months.
Emergency FMLA: Must have worked for employer for more than 30 days.
Emergency Paid Sick Leave: All employees (no minimum length of employment)
Leave Eligibility
Standard FMLA: Leave sought because: (1) employee has a serious health condition; (2) employee is caring for immediate family member with serious health condition; or (3) birth of employee's child or employee's adoption of a child.
Emergency FMLA: Leave sought because employee is unable to work or telework because employee has need for leave to care for employee's minor child whose school is closed or whose childcare provider is unavailable due to a Federal, State, or local authority-declared emergency with respect to COVID-19.
Emergency Paid Sick Leave: Leave sought because employee is unable to work or telework because employee (1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) is caring for an individual who is subject to an order as described in (1) or has been advised as described in (2) above; (5) is caring for child whose school is closed or whose childcare is unavailable due to COVID-19 precautions; or (6 ) is experiencing any other substantially similar condition specified by Health and Human Services in consultation with Treasury and Labor.
Nature of Leave
Standard FMLA: Unpaid
Emergency FMLA: Paid, with following conditions: (1) after initial 10 unpaid days; (2) pay at 2/3 of employee's regular pay with leave pay not to exceed (a) $200/day and (b) $10,000 in the aggregate.
Emergency Paid Sick Leave: Paid at regular rate of pay with leave pay not to exceed (a) $511/day and $5,110 in aggregate if used because of reason (1), (2), or (3) above; (b) $200/day and $2,000 in aggregate if used because of reason (4), (5), or (6) above.
Length of Leave
Standard FMLA: Up to 12 weeks
Emergency FMLA: Up to 12 weeks
Emergency Paid Sick Leave: For full-time employees, 80 hours; or part-time employees, number of hours equal to average worked over a 2-week period.
Additional Characteristics of Leave
Standard FMLA: Job protection
Emergency FMLA: Job protection; in addition to standard FMLA
Emergency Paid Sick Leave: In addition to any leave employer already provides
Reimbursement
Standard FMLA: Not applicable
Emergency FMLA: Employers will receive tax credits for payments made under this type of leave.
Emergency Paid Sick Leave: Employers will receive tax credits for payments made under this type of leave
Protection
Standard FMLA: Employee has private cause of action for interference or discrimination because of engaging in activity allowed by act.
Emergency FMLA: Employee has private cause of action for interference or discrimination because of engaging in activity allowed by act.
Emergency Paid Sick Leave: Employee has private cause of action for discharge, discipline, or other discrimination because of use of leave or complaining or testifying in any proceeding related to these rights.
Additional Notes:
The new leaves take effect on April 2, 2020.
Employers will be required to post a new Department of Labor issued poster which will be available in the next 7 days.
The new leave requirements will expire on December 31, 2020
Here to work with you,
David Quan
DISCLAIMER: The Law Office of David J. Quan provides this communication for general information only. This communication does not, nor does it intend to, provide legal advice or create an attorney-client relationship. Each legal problem is unique, and past performance does not guarantee future results. Persons with legal issues should consult their attorney for specific advice regarding their individual situations