U.S. Department of Labor (“DOL”) has been issuing numerous guidance documents regarding two laws: (1) the Emergency Family and Medical Leave Expansion Act (“Expanded FMLA”); and (2) the Emergency Paid Sick Leave Act, both established by the Families First Coronavirus Response Act (“FFCRA”). Various DOL fact sheets and other guidance may be found on the DOL’s website: https://www.dol.gov/agencies/whd/pandemic. The DOL also published a poster, which must be posted and/or disseminated to staff, as well as an FAQ regarding the posting requirements. The DOL is also expected to publish regulations.
Because the FFCRA was signed on March 18, 2020, and stated it would take effect not later than 15 days after its enactment, we previously reported that the effective date would be April 2, 2020. However, the DOL in its recent public guidance has clarified that these new laws will take effect April 1, 2020.
Below is a summary of the two laws and an additional Q&A with a few of the questions we have been fielding related to the application of these laws as well as the general relationship of leaves of absence during the government-imposed school closures.
Emergency Paid Sick Leave Act
(generally, 2 weeks or 80 hours of pay)
What do my employees get paid under this law and for how long?
Basically, there are two different rates of pay available under this law depending on the reason for the leave.
Qualified employees are eligible to receive 100% of their regular rate of pay (up to $511 per day capped at $5,110 total) if the employee:
- Is subject to federal, state, or local quarantine or isolation order related to COVID-19; or
- Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
- Is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
Qualified employees are eligible to receive 2/3 of their regular rate of pay (up to $200 per day capped at $2,000 total) if the employee:
- Is caring for an individual who is subject to a quarantine or isolation order; or
- Is caring for the employee’s son or daughter if the school or place of care has been closed, or the childcare provider is unavailable due to COVID-19 precautions; or
- Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
(12 weeks with the last 10 weeks paid, capped at $200/day)
How does an employee qualify for an Expanded FMLA leave?
An eligible employee qualifies for this leave if the employee is unable to work (physically or remotely) because the employee needs to care for his/her child (under 18) while the child’s:
- School or place of care is closed due to COVID-19 reasons; or
- Care provider is unavailable due to COVID-19 reasons.
Can our employees still be paid for the first 2 weeks of this leave?
If your employee is taking Expanded FMLA leave, he/she may be paid for the first 2 weeks either by taking paid sick leave under the Emergency Paid Sick Leave Act if the reason qualifies for such leave as described above (capped at $200/day and $2,000 total), or the employee may substitute any accrued vacation leave, personal leave, or sick leave per Board policy or an applicable CBA.
How are our employees paid for the last 10 weeks of this leave?
For the following 10 weeks, your employee will be paid for leave at 2/3 his/her regular rate of pay for the hours normally scheduled to work, capped at $ 200/day and $10,000 total.
Frequently Asked Questions
1. Do the FFCRA leaves still apply to situations where staff is expected to work from home?
Yes. Both laws cover situations where an employee is unable to work remotely (provided all other eligibility requirements are met).
2. Our school district has been paying all of our employees since the shutdown. Can the FFCRA leaves be applied retroactively, or do my employees have this full benefit as of April 1?
Neither of these laws becomes effective until April 1 and cannot be applied retroactively. Therefore, the full benefits of both of the laws are available April 1.
3. Are there different calculations depending on whether an employee is full time, part time, or seasonal?
Yes. The calculations can get complicated, however, and if you have any irregularly paid employees, we suggest you contact an HLERK attorney to discuss these specific situations.
4. If an employee has exhausted his/her regular FMLA leave for the employer’s 12-month FMLA leave period, is the employee still allowed a new allotment of 12 weeks of leave for a qualifying reason under the Expanded FMLA?
No. The FMLA maximum period of 12 weeks in a 12-month period did not change.
5. Is a qualified employee allowed to choose to use his/her accumulated paid leave benefits instead of using the leave available under these laws?
Yes, as long as the reason for the leave is one that would otherwise qualify for the employee’s accumulated paid leave. However, the law does not allow an employer to mandate that an employee use his/her accumulated leave before using the leave available under these laws, or vice versa. Further, an employee is not allowed, without the employer’s agreement, to use both his/her accumulated leave and the leave available under these laws for the same day (e.g., combining accumulated sick leave with paid sick leave under the Emergency Paid Sick Leave Act to make the employee “whole” for such days.) But, we do believe an employee could use his/her own accumulated paid leave days for a COVID-related reason first, and then once exhausted, they could use the leave available under these laws.
6. If my employee is absent from work due to a non-COVID reason (e.g., maternity, workplace injury, unrelated surgery, etc.) do I still have to pay them under FFCRA?
No. The two forms of FFCRA leaves do not apply to any circumstance other than COVID-related reasons identified in the law. However, school districts still may have to pay these employees in accordance with their normal paid leave programs (e.g., sick leave, personal leave, vacation leave, or leave available under contract or Board policy). Further, school districts may have to apply their normal FMLA policy as well, depending on the reason for the absence.
7. Did the transition of shutdown days from Act-of-God days to Remote Learning Days on 3/31/2020 change the requirements for paying our school district employees?
No, it did not. Under current guidance from the state, school districts are to pay employees as if the school was functioning normally and the employees were performing their normal work. Continuing to pay employees during this closure also appears necessary for districts that may wish to avail themselves of federal emergency relief funds under the recent stimulus package, known as the CARES Act. However, current guidance also states that schools can expect school employees to participate in work activities in some form.
Leave issues can be very case-specific. We encourage you to call one of our HLERK attorneys with your specific leave question.