Yesterday, we provided a response to frequently asked questions about the Emergency Paid Sick Leave Act (“EPSLA”). Today, we are providing answers to questions that we have been asked about the Emergency Family Medical Leave Expansion Act ...
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FAQs on the Emergency Family Medical Leave Expansion Act and more...



FAQs on the Emergency Family Medical Leave Expansion Act

Yesterday, we provided a response to frequently asked questions about the Emergency Paid Sick Leave Act (“EPSLA”). Today, we are providing answers to questions that we have been asked about the Emergency Family Medical Leave Expansion Act (“EFMLEA”).

Q: Who is entitled to leave under the EFMLA?
Answer: The EFMLA pertains only to those employees who have a “qualifying need related to a public health emergency.” This need pertains only to those employees who cannot work or telework because of the need to care for a son or daughter under 18 years of age whose school, place of care or childcare provider cannot care for the child due to a public health emergency. The EFMLEA does not change any other FMLA terms.

Q: How much leave is a qualifying employee entitled to receive?
Answer: A qualified employee is entitled to 12 weeks of leave.

Q: Is paid leave required under the EFMLA?
Answer: Yes. The Act states that the first 2 weeks of leave are unpaid; however, compensation may be due under the EPSLA if the employee qualifies. EPSLA leave for the care of someone other than the employee is paid at two-thirds the employee's regular rate of pay. The last 10 weeks of this leave are also compensated at two-thirds the employee’s regular rate of pay as defined by the Fair Labor Standards Act (“FLSA”)(29 U.S.C. 207(e)).

Q. Who is a “qualifying employee” under the EFMLEA?
Answer: The EFMLEA provides that “eligible employees” are those who have been employed by the employer for 30 days. This does not appear to include any hour requirement such as the normal FMLA 1,250 hour requirement. The Expansion Act applies to all private employers with fewer than 500 employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year and all government employers.

Q: Does this leave apply only to full-time employees?
Answer: No. The removal of the 12-month eligibility requirement along with the lack of a minimum-hours-worked requirement indicates that this leave is available for anyone who has worked for a minimum of 30 days, including full-time and part-time employees.

Q: Are there any exclusions from eligibility under the EFMLEA?
Answer: Yes. The Act contains a “Special Rule for Health Care Providers and Emergency Responders” which states that an employer of an employee who is a health care provider or an emergency responder “may” elect to exclude such employees from the application of the provisions of this Amendment.

Q: Is an employer required to return an employee who takes leave under the EFMLEA to his or her position at the end of the leave?
Answer: That depends. If the employer employs fewer than 25 employees and meets certain conditions, maybe not. If the employee took leave under the EFMLEA and his/her position no longer exists because of economic conditions or other operational changes caused by the public health emergency during the leave, and the employer made reasonable efforts to restore the employee to an equivalent position with equivalent benefits, pay and other terms and conditions of employment, and the efforts fail, and the employer attempts to contact the employee if an equivalent position becomes available in the 1-year period beginning on the earlier of the date on which the qualifying need related to a public health emergency concludes or the date that is 12 weeks after the date on which the employee’s leave under section 102(a)(1)(F) commences and all efforts fail, then restoration is not required. 

Q: Is compensation under the EFMLEA capped?
Answer: Yes. Employees can take sick leave under the EPSLA to cover the first 10 days of unpaid leave under the Act, but under the EPSLA that leave is capped at two-thirds the employee’s regular rate of pay. The employee can also substitute accrued paid leave (vacation, personal, medical or sick leave) for full pay for the first 10 days of the leave. After the first 10 days of leave, the remaining 10 weeks of leave are paid at two-thirds of the employee’s regular rate of pay. The total pay for all 12 weeks is capped at $200 per day or $12,000 for all 12 weeks inclusive of both paid sick leave and expanded FMLA.

If you have other questions, please do not hesitate to contact us. Be well and stay healthy.
 

FAQ’s on Emergency Paid Sick Leave Act with DOL Guidance

Who says government always moves slowly? In record time, not only has the federal government adopted three new complex pieces of legislation addressing coronavirus emergency measures but now, the Department of Labor has issued its first guidance on the subject. Below are some frequently asked questions about the Emergency Paid Sick Leave Act. Tomorrow we will cover the temporary expanded Family Medical Leave Act.

What are the actual effective dates of the Emergency Paid Sick Leave Act (EPSLA)?

Answer: Although uniformly thought to be April 2, 2020, through December 31, 2020, the Department of Labor has set the effective date for April 1, 2020.

I am a small government employer with five employees who work for me – does the EPSLA apply to my employees?

Answer: The Act specifically states that all governmental employers and all private employers with fewer than 500 employees are covered by the Act, but see #10 below.

If we already gave our employees two weeks off with pay, do we have to give them an additional two weeks off with pay after April 1st?

Answer: Yes, the EPSLA benefits are available to all employees after April 1st, of employers with fewer than 500 employees and all government employers.

How do I calculate the sick leave amount for my part-time employees who work variable hours every week?

Answer: Employers must pay their part-time employees one of three ways:
  • Average of weekly hours over the last six months OR
  • If a variable hour employee has not worked six months then use the number of hours that the employer and employee agreed to work in a week upon hire OR 
  • use the average of hours worked over the time that they have worked in the less-than-six-month period.

During the shelter in place order, are all of our employees who are not working eligible for the benefits under the EPSLA?

Answer: Yes, it is likely that all employees who are unable to work or telework due to the Governor’s stay at home order are eligible for benefits under the EPSLA.

How much pay are employees entitled to under EPSLA?

Answer: Qualified reasons for emergency paid sick time leave: An employee is unable to work or telework due to a need for leave because the employee is:
  • subject to quarantine or isolation order;
  • has been advised by a health care provider to self-quarantine due to coronavirus concerns; or
  • is experiencing symptoms of coronavirus and seeking a medical diagnosis.
  • Pay: Employee’s regular pay, up to $511/day and $5,110 over the benefit period. 
Other qualified reasons for paid sick time leave: An employee is unable to work or telework due to a need for leave because the employee is:
  • caring for an individual who is subject to quarantine or isolation order or has been advised by a health care provider to self-quarantine due to coronavirus concerns;
  • caring for their child if their school or daycare has been closed, or the child care provider is unavailable, due to coronavirus precautions; or
  • is experiencing “any other substantially similar condition specified by” the Secretary of Health and Human Services in consultation with the Secretaries of the Treasury and Labor.
  • Pay: Two-thirds of the employee’s regular pay, up to $200/day and $2,000 over the benefit period.
Can employees make a claim for benefits under EPSLA if they are laid off prior to April 1, 2020?

Answer: The DOL guidance confirms that the FFCRA is not retroactive, therefore no entitlement to benefits exists prior to April 1, 2020.

Can employees successfully argue that an employer has unlawfully retaliated under the FFCRA to avoid making paid sick leave payments if the employees were laid off prior to April 1st?

Answer: This is an interesting issue which must ultimately be analyzed on a case by case basis depending on the facts surrounding the layoffs. It is important that if employees determine that layoffs are appropriate that the reasons for the layoff are a sustained or anticipated lack of work beyond any government-issued stay at home order. Employers should well document the reasons for the layoff and be sure to follow any layoff procedures in their collective bargaining agreements.

Do any exceptions to the Act exist for employers with fewer than 500 employees?

Answer: The FFCRA provides that the Secretary of Labor may issue regulations that exempt from coverage under the Act for health care providers or emergency responders as well as businesses with fewer than 50 employees when the imposition of the EPSLA requirements would jeopardize the viability of the business as an ongoing concern. The Act does not define the terms health care providers or emergency providers. Governor Pritzker’s order defines emergency responders as follows: emergency management personnel, dispatchers, court personnel, law enforcement and corrections, hazardous materials responders, child welfare personnel, military, and other government employees working for or to support Essential Businesses and Operations. We will keep you informed on whether the Secretary of Labor issues relevant regulations.

Do employers have to post notice of the requirements of this Act like they do for other wage and hour laws?

Answer: Yes, employers are required to post notice of employee’s rights under the EPSLA and the Secretary of Labor is required to create a sample poster within seven days after enactment of the law.
 

FFCRA Applicability to Public Employers

We were recently asked about the applicability of certain provisions of the Families First Coronavirus Response Act, specifically, the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act, to units of local government. For reasons discussed further below, we believe that both the FMLA Expansion Act and the Emergency Sick Leave Act apply to local government employers.

First, the FMLA Expansion Act, which applies to childcare related work absences occasioned by school closures or the loss of childcare due to COVID0-19, provides that definitions pertaining to who is an “employer” are taken from the Fair Labor Standards Act (“FLSA”) definitions of the term “employer.” More specifically, at 29 U.S.C. 203(d), the FLSA provides that an “employer” “…includes a public agency…” The FLSA then goes on to define the meaning of the term “public agency” at 29 U.S.C. 203(x) as “…the government of a State or political subdivision thereof.” So, for purposes of the FMLA Expansion Act’s definitions of an “employer”, the term includes a “public agency,” and a “public agency” is a political subdivision of the State which includes, but is not limited to such entities as counties, cities, towns, villages, school districts, water districts, and park districts.

Second, the Emergency Paid Sick Leave Act, in Section 5110(2)(B)(iii), provides that a “covered employer” “includes any ‘public agency’, as defined in section (3)(x) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(x)). We discussed what Section 203(x) says about the meaning of the term “public agency” above, and it is clear that it includes all political subdivisions of the State.

Third, we believe that this confusion may have developed because of language in other parts of the FFCRA excluding government employers from tax credits afforded to private employers for paying for the expanded benefits provided in the Act. Sections 7001(e)(4) and 7003(e)(4) exclude government employers from receiving these tax credits, but they do not excuse government employers from the obligation to provide the expanded benefits.

For all of the reasons discussed in this post, we believe that it was the intent of the United States Congress to require that all local government employers afford their employees all of the protections provided in both the FMLA Expansion Act and the Emergency Paid Sick Leave Act. Please feel free to contact us with any questions. We also encourage our readers to look at our prior blog posts summarizing key provisions of the Families First Coronavirus Response Act. Finally, we are compiling a list of frequently asked questions addressing the application of the FFCRA that will be out on Wednesday.
 

Families First Coronavirus Response Act Becomes Law

Many clients have been asking about “emergency sick leave” which had been mentioned in various press conferences, but until last night, not finalized. On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law. The new law becomes effective on April 2, 2020, and covers employers with fewer than 500 employees. The following is a summary of changes and expansion of the Family Medical Leave Act (“FMLA”) and the new Emergency Paid Sick Leave Act that will both become effective with the new law. Please note that this new law gives the U.S. Secretary of Labor the authority to issue regulations and guidance regarding the new laws. That has not occurred yet, but we will be closely monitoring any additional developments. The following is a summary of what we know today. Finally, the new law contains tax credit provisions for private employers.

Emergency Paid Sick Leave Act
In summary, this statute is new and it requires all employers, including all government employers, with fewer than 500 employees to provide all of their employees with up to 2 weeks of paid sick leave for qualifying COVID-19 related absences. This law will take effect on April 2, 2020, and will extend through December 31, 2020. The leave will be available for immediate use and may be used by any employee regardless of how long they have been employed.

Many of our clients employ police and firefighter/paramedics. These employees will be considered “emergency responders” under the Act, which contains a provision that allows employers to exclude these employees from eligibility under the Act. The Act also provides the U.S. Secretary of Labor with the authority to issue regulations that will exempt these employees. That has not happened as of this posting. We will continue to monitor this issue and update accordingly. We believe that this provision is intended to apply to childcare provisions of the Act and not a situation wherein the emergency responder becomes infected with the virus or has to care for a sick family member.

The reasons for using emergency paid sick leave are as follows, and fall into two categories:

Employee’s Own Illness
  • The employee has symptoms of COVID-19 and is seeking a diagnosis;
  • The employee has been told by a medical provider to self-quarantine;
  • The employee is subject to a federal, state or local quarantine or “shelter in place” order (we do not have guidance on how expansively this may be interpreted, so stay tuned for updates);
Necessary Care for Others
  • The employee is caring for an individual subject to government quarantine, isolation order or who has been advised by a medical provider to self-quarantine;
  • The employee is caring for a child because of a virus related school closure or unavailability of childcare (daycare closures, park district closures, etc.)
  • The employee is experiencing any other “substantially similar condition” as specified by the U.S. Secretary of Health and Human Services in consultation with the U.S. Secretaries of Treasury and Labor (if this sounds overly vague, it is and we await clarification on what exactly it is supposed to mean – as written it is an alarmingly unclear “catch-all” provision)
Full-time employees are eligible for up to 80 hours of leave. Part-time employees' eligibility should be calculated on the average number of hours worked in a two week period.

The new law caps pay. If the absence is for the employee him/herself, the employee gets his/her actual rate of pay or the applicable minimum wage, whichever is greater, with a cap of $511 per day or $5,110 total. For the care of others, the cap is 2/3 the employee’s minimum regular rate of pay or the applicable minimum wage, whichever is greater, with a cap of $200 per day or $2,000 total.

The leave will not carry over nor can it be “banked” for use beyond the expiration date of December 31, 2020. Employers cannot require employees to use other paid time off (vacation, sick, personal, comp, etc.) prior to the emergency sick leave provided by this Act. This paid leave is in addition to all other forms of paid leave offered by an employer by policy, collective bargaining agreement (“CBA”) or both. The new law has notice provisions, but that may be “window dressing” given the circumstances surrounding this virus. This is not like elective surgery, so we advise being very careful about denying leave under this Act based upon not receiving “reasonable” notice.

Employees who use this leave must return to work as soon as the need for the leave resolves (employee tests negative for the virus, school is back in session, etc.). Employers cannot require employees to find replacements before allowing them to use this leave. Retaliation and discrimination for using this leave are prohibited and violations will be penalized. The penalties will be considered minimum wage violations under the FLSA and shall include lost wages, liquidated damages and attorney’s fees and costs. If the violation is intentional, a $10,000 fine may be assessed and repeat offenders may be sentenced to up to 6 months in prison (federal prison we presume) after a prior conviction.

Social Security taxes do not apply to emergency sick leave under this Act for purposes of calculating Social Security taxes owed by the employer. FMLA definitions will apply for terms such as son or daughter and health care provider.

In summary, this is broad legislation intended to provide pay for COVID-19 related work absences relating to the employee’s illness, the need to care for a family member, government-ordered quarantines/lockdown and COVID-19 related childcare issues. It is NOT 2 weeks of paid leave to stay home because an employee does not want to come to work or is afraid to come to work based upon fear of contracting the virus.

Expansion of the FMLA
The expansion of the FMLA requires employers of 500 or fewer employees and government employers to provide 12 weeks of job-protected leave to all full-time, part-time and temporary employees who have been on the job for at least 30 days. There is no minimum hour requirement for this leave. The new law provides for small business exemptions for employers with fewer than 50 employees, but it does not specifically reference small “government employers,” so, at this time, the expansion appears to apply to all government employers. There is a provision regarding exclusions from the expansion for emergency responders (police and fire), but the Secretary of Labor was given authority to promulgate rules exempting such employees, so we will update this information when and if that happens.

The added qualifying reason for this leave is that the employee is forced to care for a child under 18 because of a school closure or the unavailability of childcare due to COVID-19. The first 10 days of this leave are supposed to be unpaid, but it is possible that the Emergency Paid Sick Leave Act may be used in this instance as well as any other form of paid time off at the employee’s discretion. The employer cannot force the employee to use emergency paid sick leave or other paid benefit time if they choose not to do so. After the first 10 days of “unpaid” leave (if the employee does not substitute paid leave), employees must be paid 2/3 their regular rate of pay using the same formulas set forth above for emergency paid sick leave. This paid leave is capped at $200 per day and $10,000 in total.

Employers with 25 or more employees must return the employee to the same or a substantially similar position using existing FMLA rules. Employers with less than 25 employees may not have to return employees to work, but conditions apply and all conditions must be met to deny return to work. The conditions are summarized below:
  • The employee took leave to care for a child based upon school closure or the unavailability of childcare due to COVID-19; and
  • The employee’s position no longer exists because of economic conditions occasioned by COVID-19; and
  • The employer makes “reasonable efforts” to restore the employee to their position; and
  • The reasonable efforts fail; and
  • The employer tries to contact the employee if an equivalent position becomes available for one year starting on the earlier of: (1) the date the qualifying need related to COVID-19 ends (school goes back in session) or (2) a date 12 weeks after the employee’s leave started. 

Remember, if reinstatement is denied, ALL of the elements above must be satisfied.

As with the Emergency Paid Sick Leave Act, wages under the FMLA expansion for COVID-19 are not subject to Social Security taxes, and as with the FMLA, discrimination and retaliation are prohibited. Violations of the FMLA as expanded shall be handled the same as violations of the FMLA.

Conclusion
We recognize that these are difficult times and our clients have many concerns. We also recognize that emergency measures, including emergency legislation such as those summarized above, are often moving targets. Rest assured that we will continue to monitor new legislation as well as new regulations that may affect our clients. If you have any questions, please do not hesitate to contact us, and most importantly be well and stay safe.
 

Pending Federal Legislation Offers Emergency Paid Leave to Workers

Last Saturday, the U.S. Congress passed the federal Families First Coronavirus Response Act, mandating paid leave and expanding FMLA benefits for those affected one way or another by coronavirus. It was sent to the Senate, where it has not yet passed, but it is likely to be approved. Although still subject to Senate amendments, if it becomes law as it is written today, employees of employers with fewer than 500 employees would be entitled to the following paid leave benefits:

Who:
  • Full and part time employees are eligible for this leave regardless of their length of service. Although no regulations have issued yet on this proposed Act, it appears to not cover seasonal or temporary employees.
What:
  • Full-time employees would be entitled to 80 hours of paid leave.
  • Part-time employees would be entitled to the amount of leave that equals the number of hours that the part-time employee would work on average in a two week period.
Available Uses:
  • To self isolate because the employee is diagnosed with coronavirus;
  • To obtain a medical diagnosis or care if the employee is experiencing symptoms of coronavirus;
  • To comply with a recommended order by a public official or health care provider that the physical presence of the employee on the job would jeopardize the health of others because of: 1) an exposure of the employee to the coronavirus or the employee has symptoms of coronavirus; or 2) symptoms of the coronavirus.
  • To care for or assist a family member of the employee who is self-isolating because of a diagnosis of coronavirus or has symptoms of coronavirus or if a public health official or health care provider has determined that the physical presence of the family member in the community would jeopardize the health of the community because the family member has been diagnosed with coronavirus or has symptoms of same.
You may ask for a doctor's note or a note from a public health official to verify the above.

Other provisions of the emergency paid leave portion of the Act:
  • Employees are entitled to use this emergency paid leave before using other benefit time
  • Employees may not carry it over to next calendar year
  • Employers are prohibited from reducing existing leave benefits provided by policy as a result of this Act.
It appears that employers are not obligated to pay employees for any unused emergency leave available under this Act. It is made available for specific circumstances and is not generally available for any illness related absence other than coronavirus related leaves.

Expiration:
  • The benefits under this Act expire on December 31, 2020.
Expansion of FMLA:
For employers who are already subject to the FMLA, the Act also includes an expansion of the FMLA to include paid time off after two weeks for coronavirus related absences, including child care resulting from school closures. 

Who:
  • Employees of employers with fewer than 500 employees, although employers with fewer than 50 employees are exempt if the leave “would jeopardize the viability of the business.”
  • The employee must have worked for the employer for at least 30 days.
The current version of the Act does not define how to count 50 employees or what would meet the test of jeopardizing the viability of the business. 

What:
  • 12 weeks of FMLA leave for absences resulting from coronavirus issues.
  • Paid leave at the rate of 2/3 of the employee’s pay after the first two weeks of leave.
Presumably, an employee using this FMLA leave can utilize other benefit time or emergency paid leave (see above) for the first two weeks of leave.

Available Uses:
  • To comply with a public health official recommends or medical provider directs that the physical presence of the employee on the job would jeopardize the health of others because of the 1) exposure of the employee to coronavirus or 2) the employee exhibits symptoms of coronavirus.
  • To care for a family member of an eligible employee where a public health official recommends or medical provider directs that the physical presence of the family member in the community would jeopardize the health of the community because 1) the family member has been diagnosed with coronavirus or 2) has symptoms of same.
  • To care for a child of the employee who is under 18 years old if the elementary or secondary school or place of care has been closed, or the childcare provider of the child is unavailable, due to a public health emergency.
We will keep you informed of developments.