Emergency Paid Sick Leave and FMLA Leave Updates in Response to COVID-19

The Families First Coronavirus Response Act (“FFCRA”) was signed by the President on March 18, 2020 and will become effective no later than April 2, 2020. The law contains numerous updates to the country’s employment regulations in response to the Coronavirus pandemic of which employers should be familiar.

Of particular note, the FFCRA makes limited amendments to the Family and Medical Leave Act. Now, pursuant to the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) employees may take up to 12 weeks of family and medical leave after having worked with the employer for 30 calendar days if the employee is unable to work (or telework) due to the employee’s need to care for a son or daughter under 18 years of age due to the child’s school closure or unavailability of a childcare provider due to a public health emergency, i.e., COVID-19. Unlike the FMLA, which does not apply to many small employers, this requirement applies to any employers with 500 or fewer employees. No mileage radius requirement exists under the EFMLEA.

When an employee utilizes leave pursuant to EFMLEA, the first 10 days of that leave may consist of unpaid leave, but the employee may elect to substitute any accrued paid vacation leave, personal leave, or medical or sick leave, including the Emergency Paid Sick Leave provided for by the Act and described below). All subsequent days of leave taken by the employee after the tenth day must be paid by the employer at a rate of not less than two thirds of the employee’s regular rate of pay and the number of hours the employee would otherwise normally be scheduled to work. The cap is $200 per day or $10,000 in the aggregate.

The second part of the FFCRA (the Emergency Paid Sick Leave Act) requires private employers with fewer than 500 employees to provide eligible employees Emergency Paid Sick Leave. This new law takes effect no later than April 2, 2020 and expires on December 31, 2020. Under the Emergency Paid Sick Leave, Employees are immediately eligible for this sick leave if they:

  • Are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • Have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  • Are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • Are caring for an individual who is subject to quarantine or has been advised to self-quarantine;
  • Are caring for a son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to the COVID-19 precautions; and/or
  • Are experiencing any other substantially similar condition specified by the Secretary of Health or Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Eligible full-time employees are entitled to 80 hours of Emergency Paid Sick Leave, and eligible part-time employees are entitled to the typical number of hours that they work in a typical two-week period. Note that employers cannot require employees to use other forms of paid leave before using paid sick leave under this Emergency Paid Sick Leave.

The FFCRA includes certain, limited exceptions to this requirement, such as healthcare providers or emergency responders. Employers of such individuals may elect to exclude employees from the application of this new sick-leave requirement. The FFCRA does not include an exception for small employers, though the Department of Labor is authorized, in some circumstances, to provide an exemption to employers with fewer than fifty employees but only concerning the fifth category listed above.

To help accommodate this leave, the FFCRA further provides tax credits to private employers impacted by the emergency paid sick leave and paid FMLA leave permitted by the Act. Specifically, the FFCRA allows a credit against quarterly payroll taxes equal to the full amount the employer pays its employees for the FMLA and Emergency Paid Sick Leave described above during that quarter.

Further information concerning the COVID-19 emergency for California employees, employers, and residents can be found at https://covid19.ca.gov/stay-home-except-for-essential-needs/

This document is intended to provide you with information about employment and labor law related developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact the authors or any of Haight’s attorneys. This communication may be considered advertising in some jurisdictions.

March 23, 2020