COVID-19 Employment Law News

Analysis of the Families First Coronavirus Response Act

By Kim L. Carter

Relief is around the corner for employees affected by school closures and quarantine orders related to COVID-19.  President Trump signed into law, the Families First Coronavirus Response Act that takes effect on April 1, 2020.  The Act includes two laws that provide eligible employees paid emergency leave: the Emergency Family Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA).

Emergency Family Medical Leave Expansion Act

What is the law?

The EFMLEA is an expansion of the Family and Medical Leave Act (FMLA) to extend protective leave to employees that must care for their minor children whose schools or child care providers are closed or unavailable due to the public health emergency related to COVID-19.

Who is covered?

Employees that have worked for the employer for a minimum of thirty (30) days qualify for the EFMLEA.  This requirement is more relaxed than with the traditional FMLA which requires employees work 12 months and have worked at minimum 1250 hours to qualify for protected leave.  Moreover, the EFMLEA is silent as to whether the employees must actually work 30 days or whether they must simply have been hired thirty or more days before requesting the leave.

Employers that have fewer than 500 employees are mandated to comply with the EFMLEA.  This, too, differs from traditional FMLA, which applies to employers with more than 50 employees. 

What is the paid leave?

Eligible employees are afforded emergency paid family leave under the EFMLEA.  The first 10 days are unpaid.  Then, the employee is entitled to 2/3rds their regular rate of pay at the number of hours they work per week, with a cap of $200 per day, and an aggregate of $10,000 per individual.

If an employee’s hours worked per week is not certain, then the average hours an employee has worked over the preceding sick months – leaves of absences included – will be calculated, and applied. Or, in the event an employee has not worked with the employer for six months, the reasonable expectation of the hours an employee would work at the time of hire, will apply.

Job Restoration

Employers are required to comply with the FMLA requirements to protect and restore an employee’s position when they take leave under the Act.  However, the EFMLEA provides an exemption for employers with fewer than 25 employees if: (1) the employee takes leave under the EFMLEA; (2) the position the employee held no longer exist due to economic or operations conditions that affect employment caused by COVID-19; (3) the employer has made reasonable efforts to restore the employee to an equivalent position; and (4) the employer makes reasonable efforts to contact the employee when a position becomes available, the obligation to do so is one year following the termination of the protected leave.

Who is exempt from the EFMLEA?

The EFMLEA grants authority to the Secretary of Labor to exempt health care professionals and first responders from the Act.  Also, the Secretary of Labor may also exempt small businesses with fewer than 50 employees “when the imposition of the EFMLEA would jeopardize the business’s viability.”

The EFMLEA and the FMLA

The EFMLEA does not extend the 12-week protection provided to employees under the FMLA.  It merely provides an additional reason for employees to take protected leave – which is specifically related to COVID-19.  With that said, any leave that an employee has taken under the FMLA within the preceding 12 months, should be accounted for when an employee is requesting leave under the EFMLEA.

Emergency Paid Sick Leave Act

What is the law?

The Families First Coronavirus Response Act also lays out a new provision for temporary emergency paid sick leave pursuant to the EPSLA.  Under the EPSLA, emergency paid sick leave is available to employees who are unable to work or telework due to one of the following reasons:

  1. The employee is subject to Federal, State or local quarantine or isolation related 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 seeking a medical diagnosis.
  4. The employee is caring for an individual that is subject to Federal, State or local quarantine or who has been advised by a health care provider to self-quarantine.
  5. The employee is caring for their son or daughter whose school or child care provider is closed, or child care is otherwise unavailable due to COVID-19 precautions.  
  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 Treasure and the Secretary of Labor.

Who is covered?

An employee, under the EPSLA, has the same meaning as in the Fair Labor Standards Act.

Under the EPSLA a covered employer is a private employer employing fewer than 500 employees, and generally a public agency that employs 1 or more people. 

What is the paid leave?

Employees that are affected by one of the six enumerated conditions above, are entitled to paid sick leave. 

A full time employee, regardless of how many hours worked per week, is entitled to 80 hours of sick leave at their regular rate of pay.

A part time employee is entitled to the average hours of sick leave they would work over a 2-week period. Similar to the EFMLEA above, a part time employee’s average hours worked in a week, if uncertain, will be calculated by taking the average weekly hours an employee worked over the preceding six months from the first day leave is taken.   Also, like with the EFMLEA, in the event an employee has not worked with the employer for six months, the reasonable expectation of the hours an employee would work at the time of hire, will apply.

Unlike EFMLEA, this leave is paid out in tiers, depending on the reason the leave is taken.  If the employee takes leave because he is personally affected by the public health emergency related to COVID-19 (reasons (1) – (3) above) then the employee will be compensated at the regular rate of pay, subject to a cap of $511 per day, aggregate of $5110. 

However, if the employee takes leave to care for another in need due to the health emergency related to COVID-19 (reasons (4) – (6) above) then the employee will be compensated at 2/3rds  the regular rate of pay, subject to a cap of $200 per day, aggregate of $2000.

Who is exempt from the EPLSA?

Under the EPLSA, employers may opt-out of providing benefits to health care providers and first responders.  Also, the Secretary of Labor may exempt small businesses with fewer than 50 employees “when the imposition of the EPLS would jeopardize the business’s viability.”

When can an employee request emergency paid sick leave?

As soon as the employee is eligible, leave can be requested.  Moreover, leave can be taken as of the first day the law takes effect.  Employees are not required to use any other leave benefits available to them by the Federal, State or local government, collective bargaining agreement, or company policy before taking emergency paid sick leave.

Other facts about EPLSA

EPLSA benefits are not vested with the employee.  An employee that is discharged or terminated from employment is not entitled to any unsed emergency paid sick leave to be paid out.  Likewise, once the emergency has subsided, the right to paid sick leave terminates. 

How does EFMLEA and EPLSA work together?

Employees that take leave to care for a minor child due to a school or child care provider being  closed or unavailable related to COVID-19, may request both emergency paid sick leave and emergency family leave.  In that scenario, the employee will be entitled to paid sick leave as of the first day of the request, for two weeks  (reasonably calculated to 10 working days.)  Then, on day 11, paid family leave will beginning and proceed for 10 weeks, or until it is no longer needed, whichever is earlier. 

Both leaves expire on December 31, 2020.

Employer Tax Credit

Employers are entitled to payroll tax credits for payments to individuals under the EFMLEA and EPLSA, the credits must be taken quarterly in this year.

The EFMLEA and the EPLSA are first steps toward relieving the stress on employees that are unable to work due to the public health emergency related to COVID-19.  There are many questions regarding the implementation of this action.  The Secretary of Labor has been ordered to provide guidance on how to calculate emergency paid sick leave and to provide a model notice posting for employers. 

From day-to-day the government’s position and the public health response to the COVID-19 pandemic is evolving and remains fluid.  We are committed to posting updates regarding these acts and other employment related topics, as the information becomes available.

Please Note

This article is intended to be for informational purposes only. This information does not constitute legal advice. The law is constantly changing and the information may not be complete or correct depending on the date of the article and your particular legal problem. The use of information from this article does not create any type of attorney-client relationship.

About the Author

Kim L. Carter

Kim L. Carter focuses her practice on race/disability discrimination, sexual harassment, wage and hour disputes, and other labor and professional employment litigation issues. In addition to litigating in federal and state courts, Ms. Carter regularly represents California businesses in administrative matters and hearings before the DLSE, CUIAB, DFEH, and other state and federal agencies. She has participated in numerous trial preparations on race discrimination, wrongful termination, sexual harassment and battery, negligent supervision and hiring, trade secrets, and professional liability matters. To learn more about Ms. Carter please visit her profile page.

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