By Fran Slusarz
On April 2, the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act become law. They are both part of the Families First Coronavirus Response Act and together provide certain workers with up to 12 weeks of paid leave to care for themselves or family members. It goes a long way to relieve some of the anxiety we all have about COVID-19, but the devil is in the details.
The laws only apply to government employees and private employers with fewer than 500 employees. Private employers with fewer than 50 employees may be eligible for exemptions from the laws. Employers of healthcare providers and emergency responders can elect to exclude them from the Emergency Paid Sick Leave Act, and the Secretary of Labor can exclude certain healthcare providers and emergency responders from both laws. Finally, both laws will sunset on December 31, 2020.
With those caveats, here is a summary of the safety net the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act provide for many employees.
Emergency Paid Sick Leave Act.
This law provides paid sick leave for all employees: 80 hours for full-time employees, and the average number of hours worked in a two-week period for part time employees. The amount of the payment depends on whether the employee’s health is the reason for the leave, or if the leave is to care for someone else.
The Employee’s Health
The employer must provide sick leave at full pay (up to $551/day and $5,510 in total), when the employee is:
1. subject to a Federal, State, or local quarantine order relating to COVID-19;
2. advised by a healthcare provider to self-quarantine due to concerns aboutCOVID-19; or
3. is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
This is extremely generous – it means that employees earning up to $143,260 per year will receive full pay for up to two weeks if they miss work due to their own COVID-19 health concerns.
Caring for Someone Else
Employees who miss work to care for a family member will be paid two-thirds of their regular pay (up to $200/day and $2,000 in total) if the family member is:
1. subject to a Federal, State, or local quarantine order;
2. has been advised by a healthcare provider to self-quarantine; or
3. the employee’s son or daughter whose school or childcare is closed due to COVID-19.
This is not as generous as income replacement for your own health, but you can minimize your loss of income if you can work reduced hours.
Terms, Conditions, Caveats
There is no waiting period to use Emergency Paid Sick Leave. Your employer cannot force you to use accrued paid time off before you use emergency sick leave, but you can choose to do so. You do not have to have been employed for a minimum amount of time, and your employer can’t require you to find someone to cover for you before you take paid sick leave.
The Emergency Paid Sick Leave Act does not give you two weeks off paid if you have cold symptoms. You have to demonstrate your eligibility just as you would with any other leave of absence. This means doctor’s notes and other reasonable proof. The leave ends when your need for the leave ends, even if it is on day 4.
Equally important, the law does not provide a paid leave if you are worried that you might be exposed to coronavirus by going to work, or if you are laid off or furloughed from your job. For layoffs or furloughs, you should file for unemployment. (Here is more information about your individual state unemployment rules due to coronavirus)
Emergency Family and Medical Leave Expansion Act.
This law broadens the coverage of the Family and Medical Leave Act (FMLA) and adds a paid leave element. The FMLA provides job protection for up to 12 weeks of leave if you cannot work because you have a serious health condition or because you have to care for a family member with a serious health condition. It only applies if your employer has at least 50 employees and only after you have worked for the employer for a 1250 hours. The employer could pay you during the leave, and you could choose to use accrued paid time off during the leave, but the law did not require the employer to provide a paid leave.
The Emergency Family and Medical Leave Expansion Act covers all employers with up to 500 employees (don’t forget the exceptions, above) and you get the benefit if you have been employed at least 30 consecutive days before your leave begins. You still qualify for the leave for your own serious health condition or to care for a family member, but the expansion covers leaves due to school and childcare closures.
The first 10 days of leave are unpaid under the FMLA expansion because they are paid under the Emergency Paid Sick Leave Act. During the remaining 10 weeks, your employer pays you two-thirds of your regular pay, up to $200/day and $10,000 in total. As with regular FMLA leave, you may have the option of working reduced hours or taking the leave intermittently.
Recognizing the potential hardship to very small employers, the law does not require employers with fewer than 25 employees to restore the employee to the same or an equivalent position if the pandemic has so changed the employer’s business that the job no longer exists. The employer still has to try to restore the employee to an equivalent position and take reasonable efforts to call the employee back if an equivalent job opens in the year after the leave of absence begins.
Don’t Cry for Me, Dear Employee
The potential outlay of money by employers is enormous. To illustrate, if an employee has 100 workers who need the maximum benefit under these laws, the employer will pay out $1,551,000 throughout the year and receive no services in return. This is a scary number for any business, and I can foresee a situation where your employer may try to negotiate a lower payment.
Don’t fall for it. They can’t do less than the law requires, and you have the right to file a complaint with the Department of Labor if they do. You are also protected against retaliation by your employer if you file a complaint.
Still worried you might hurt people you like if you aren’t flexible? Your employer will be reimbursed dollar-for-dollar by the federal government in credits on their quarterly employment tax returns and tax refunds. I’m not oblivious to the challenge this will be for your employer. I know that very few businesses have the spare cash lying around to make payroll for twelve weeks when little or no money is coming in. But Congress is working on very favorable loan terms to keep businesses open and fill the cash flow gaps.
Broad changes to our employment laws have never happened this quickly in our country, and more changes will come as this pandemic continues. Right now, Congress is working on another coronavirus relief package that will, I am sure, contain more sweeping changes. I will keep you posted on what these laws mean to you.