On March 18, Congress passed and the President signed the Emergency Family and Medical Leave Expansion and Paid Sick Leave Acts as part of broader legislation enacted to address the COVID-19 pandemic. (H.R. 6201, Divisions C and E). The legislation is effective April 2, 2020 and will expire December 31, 2020. The new law impacts employers in two key respects: it requires emergency Family and Medical Leave Act (FMLA) leave be provided to qualifying employees and requires that emergency paid sick leave be offered to an employee who is unable to work due to specific impacts of COVID-19. 

Federal agencies will be issuing further guidance and notices for employers to utilize to implement these laws.

Emergency Family and Medical Leave Expansion Act

Under the new law, all employers with less than 500 employees are required to allow qualifying employees to use FMLA leave for the emergency reasons described below.

  • Qualified Employees

An employee qualifies for emergency FMLA leave if he or she:

  1. Has been employed by the employer for at least 30 calendar days before the first day of the leave; and
  2. Is unable to work or telework due to having to care for a minor child whose school or regular care provider is closed or unavailable because of an emergency involving COVID-19 declared by local, state, or federal officials

Employers generally have authority to prevent health care providers and emergency response employees from taking emergency FMLA leave.

The Secretary of Labor has authority to issue a regulation exempting employers with less than 50 employees from providing this leave, but it is not clear whether such a regulation will be issued.

  • Leave

The first 10 work days of emergency FMLA leave taken by a qualifying employee may be unpaid. During this 10-day period, an employee may elect to substitute all or any of the 80 of hours paid sick leave required in the Paid Sick Leave Act described in the next section of this message or other accrued paid leave to cover some or all of the 10-day unpaid period. 

After 10 days of the FMLA emergency leave, the employer must pay a full-time employee two-thirds of his or her regular pay rate as defined by the federal Fair Labor Standards Act of 1938 (FLSA) for any hours he or she would have normally worked. An employer is not required to pay an individual employee more than $200 per day, nor more than $10,000 total, for any emergency FMLA taken. Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work. 

This leave will be counted like any other FMLA leave toward the employee’s maximum of 12 weeks of leave in the employer’s FMLA 12-month period.

  • Job Protection

Like regular FMLA leave, the new law provides that an employee who takes emergency FMLA leave is entitled to retain their position. But, an employer with less than 25 employees may not be required to restore an employee whose position no longer exists due to the economic or other implications of the pandemic.

Paid Sick Leave Act

Nearly all public employers are generally required to offer 80 hours of paid sick leave to qualifying full-time employees and a pro-rated amount for part-time employees.

  • Qualified employees

Unlike the requirement for emergency FMLA leave, employees need not be employed for 30 calendar days to make use of this benefit. However, the employee must be unable to work or telework due to the employee:

  1. Being subject to a federal, state or local quarantine or isolation order related to COVID-19
  2. Advised by a health care provider to self-quarantine due to COVID-19 concerns
  3. Experiencing COVID-19 symptoms and seeking medical diagnosis
  4. Caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns
  5. 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 public health emergency; or
  6. Experiencing any other substantially similar condition specified by the federal government.
  • Leave

An employer must allow the employee to use leave and compensate an employee for all hours used at their normal rate of pay up to $511 per day, but no more than $5,110 in total, if the employee takes leave based on a direct quarantine order or advisement, or because of COVID-19 symptoms. Compensation is limited to $200 per day and $2,000 in total if leave is taken to care for another person under quarantine, for lack of child care, or for symptoms similar to those of COVID-19.

Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking paid sick leave. Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work over a two-week period.

An employer must, at the request of the employee, pay a full-time employee this paid sick leave instead of the initial 10 days of unpaid leave permitted by the Emergency Family and Medical Leave Expansion Act described in the preceding section.

This paid sick leave will not carry over to the following year and is in addition to any paid sick leave currently provided by employers. Therefore, employers cannot force employees to use their accumulated employer provided sick leave time when using this leave.

If you need any assistance on handling a pandemic in the workplace or any other labor employment advice, please contact labor and employment attorneys Brandon M. Fitzsimmons (bmfitzsimmons@flaherty-hood.com) or Chelsea J. Bodin (cjbodin@flaherty-hood.com) of Flaherty & Hood, P.A.