During these trying times of the COVID-19 pandemic, both workers and employees are faced with the impossible task of balancing job duties and the concerns of the health of workers and the health of their families. To address these concerns, workers have received assistance in the form of a new law enacted known as the Family First Coronavirus Response Act (FFCRA). First and foremost, the FFCRA applies to all employers who have less than five hundred (500) employees. Among the many portions of the Act, the two most significant are Paid Sick Leave under the Emergency Paid Sick Leave Act (EPSLA), and the Emergency Paid Family Medical Leave Expansion Act (EFMLA). Both of these go into effect on April 1, 2020 and run until December 31, 2020.
Generally, the FFCRA covers employers with less than five hundred employees. Both the eligibility and the benefits allowed to employees will be discussed below.
EMERGENCY PAID SICK LEAVE ACT
Who is Eligible Under the Emergency Paid Sick Leave Act?
Under the Emergency Paid Sick Leave Act, an employee would be eligible for those benefits if they are unable to work or telework because the employee is:
- Subject to a federal, state, or local quarantine or isolation order; or
- Has been advised by a healthcare provider to self-quarantine; or
- Experiencing COVID-19 symptoms and is seeking medical diagnosis; or
- Caring for an individual subject to a quarantine or isolation order, or has been advised to self-quarantine; or
- Caring for a child whose school or care provided is closed or unavailable (overlaps with the Emergency Family Medical Leave); or
- Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
What Benefits Does the Emergency Paid Sick Leave Act Provide?
An eligible employee is entitled to the following:
- Up to 80 hours of paid sick leave;
- Based upon their regular rate of pay (6-month average);
- If part-time, the average pay is calculated by taking the average of their pay over two weeks (or six months if unpredictable);
- Cap on pay;
- For self-care, quarantine or isolation, the employee is entitled to 100% of their pay up to $511 per day and $5,110 total over the 80 hours.
- For the care for others and for a substantially similar condition, the employee is entitled to two-thirds (2/3) pay up to $200 per day and $2,000 total over the 80 hours.
Leave Sequencing under the EPSLA
Employees must be allowed to use their Emergency Sick Leave Pay before any other leave. The employer may also not force the employee to utilize any other leave before the Emergency Sick Leave Pay. Finally, the Emergency Sick Leave Pay runs concurrently with the Emergency Family Medical Leave.
On May 7, 2020 the Department of Labor for the United States issued updated guidance for employers regarding employees seeking paid sick leave for COVID-19 reasons. Under this new guidance, when an employee requests paid sick leave under the FFCRA to seek a medical diagnosis for COVID-19 related symptoms, an employer may require the employee to identify his or her symptoms and a date for a test or doctor’s appointment. [The employer] may not, however, require the employee to provide further documentation or similar certification that he or she sought a diagnosis or treatment from a health care provider in order for the employee to use paid sick leave for COVID-19 related symptoms.
EMERGENCY FAMILY MEDICAL LAVE EXPANSION ACT
What Employees are Eligible for the Emergency Family Medical Leave Expansion?
This Act extends the allowable reasons for standard FMLA leave to leave taken “because of a qualifying need related to a public health emergency until December 31, 2020.” Such extended reasons apply only in limited circumstances which are defined as:
- Employee is unable to work or telecommute, AND
- Need for childcare for a child under the age of 18; AND
- Child’s school or care provider is closed or unavailable because of a COVID-19 related public health emergency declared under federal, state or local law.
What Benefits are Employees Entitled to Under the Emergency Family Medical Leave Expansion Act (EFMLA)?
An eligible employee is entitled to:
- Two weeks of unpaid leave (EPSLA will provide coinciding payment/leave for these two weeks concurrently should employee choose to do so);
- Up to 10 weeks of paid leave at two-thirds (2/3) regular rate of pay capped at:
- $200 per day
- $10,000 total
- Plus the $2,000 from the EPSLA for a total of $12,000.
However, if an employee has already taken FMLA within the last 12 months, they may not be entitled to full benefits.
Leave Sequencing under the Emergency Family Medical Leave Expansion Act (EFMLA)
Under the EFMLA, employees may elect to substitute their ESLPA leave or other accrued paid time off for the first two weeks. However, employers cannot require employee make any substitutions but the extended FMLA leave runs concurrently with ESLPA leave.
Documentation Required of the Employee
An employer must require the following documentation from an employee electing to take EFMLA leave to support the reasoning for leave which includes documentation showing:
- Qualifying reason;
- Statement the employee is unable to work or telework;
- Dates of requested leave.
- Examples of documentation include:
- A quarantine or isolation order;
- The name of the healthcare provider who has advised of self-quarantine;
- Documentation from healthcare provider advising of self-quarantine.
- For school closures:
- A notice that has been posted on a government, school or day care website, or published in newspaper;
- An email from an employee or school official or child care provider.
- Employer should retain copies if seeking tax credits.
A failure by an employer to pay sick leave is a violation of the Fair Labor Standards Act, while a failure to pay emergency FMLA is a violation of the FMLA. It is important to note however that there is no private right of action for damages under the EFMLA for violations by employers who employ under fifty (50) employees. However, the Department of Labor may still bring an enforcement action under the EFMLA even if the employer has fewer than fifty (50) employees.
If you are an employee and you believe you are eligible for sick pay or extended Family Medical Leave under the newly enacted EPSLA or the EFMLA, or you are an employer that is facing employee requests for such extended benefits, please contact the experienced employment lawyers at Harlow, Adams & Friedman, P.C. today at 203-878-0661 for a free consultation.Contact Us For a Free Consultation