Editor’s Note: This article has been updated to provide additional clarity regarding full time and part time emergency paid leave. LEAs will need to keep in mind, that the Emergency FMLA and Paid Sick Leave are Federal requirements of employers and will not limit benefits available to employees based on collective bargaining unit agreements.
In response to the COVID-19 pandemic, the U.S. Senate and the House approved expansion language to the Family Medical Leave Act (FMLA), named the Families First Coronavirus Response Act as well as the Emergency Paid Sick Leave Act which was signed into law by President Donald Trump on March 18, 2020. Effective April 1, 2020, through December 31, 2020, this law makes significant augmentations to FMLA involving qualifying reasons and duration of employment for eligibility purposes, as well as additional paid leave provisions. More information regarding the Families First Coronavirus Response Act can be found here.
Emergency Family and Medical Leave Act
The new law will require public sector employers and private employers with fewer than 500 employees to provide up to 12 weeks of job-protected FMLA leave for a qualifying need related to a public health emergency. (Employers can exclude employees who are health care providers or emergency responders from this emergency FMLA entitlement). Included in the qualifying need is the absence of an employee due to a need to care for a minor child if the child’s school or child-care is unavailable due to a public health emergency. In order to meet the public health emergency qualification, employees must have been on the payroll for 30 calendar days. Recall that FMLA leave can be paid or unpaid leave.
Emergency Paid Sick Leave
In addition to FMLA leave, local educational agencies (LEAs) may allow employees to use leave for purposes related to COVID-19 for the first ten days (two weeks) of leave which includes emergency paid sick leave (defined below). This includes employees who are unable to work due a federal, state, or local quarantine order; employees who have been advised to self-quarantine by a health care provider due to COVID-19; employees experiencing symptoms of COVID-19; or employees caring for a family member who has COVID-19, or a family member who is experiencing symptoms related to the virus. The remaining ten weeks of leave are paid at 2/3 of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work with a maximum of $200 per day and $10,000 total. This emergency leave is also job-protected which means employees can return to the same or equivalent position when they return to work (with some exceptions).
Under the provisions of the Emergency Paid Sick Leave Act, public employers are required to provide 80 hours paid sick leave (for full-time employees). For part-time employees, the number of hours worked on average over a two-week period is the basis for the leave. The rate of pay for this leave is 2/3 of the employee’s regular rate for employees who are unable to work or telework due to the following reasons:
- Employee is caring for an individual who is subject to or advised to quarantine or isolate
- Employee is caring for a child whose school or day care is closed or unavailable due to COVID-19 precautions
- Employee is experiencing symptoms of COVID-19 similar to those defined by the Secretary of Health and Human Services
Paid leave is limited to $511 per day ($5,110 in total) when employees are using this emergency sick leave for their own illness or quarantine for the following reasons:
- Local quarantine or isolation order related to COVID-19
- Employee advised by health care provider to self-quarantine because of COVID-19
- Employee is experiencing symptoms of COVID-19
Paid sick leave under these provisions is to be used prior to any accrued leave the employee has earned. Employers cannot require that the accrued sick leave be used first. Hours granted prior to this law through generosity of employers may not be used against this leave. At the sunset date of December 31, 2020, this leave will not carryover.
Both laws are subject to anti-retaliation protections and subject to penalties for failure to pay. Due to the evolving situation involving the COVID-19 pandemic, the reasons for an employee’s absence from work can change on a day-to-day basis. As we know, many school employees are currently on paid leave due to school closures, (see “Ask SSC…How Do We Document Employee Absences During School Closures?” in the March 2020 Fiscal Report). Now, more than ever, it is critical that LEAs practice strong documentation procedures regarding employee attendance to accurately reflect leave and ensure legal compliance. It is also important for employers to communicate with their employees regarding leave entitlements to ensure they are informed of their rights.