Thursday, March 19th, 2020

Federally Mandated Paid Leave for Employees Related to COVID-19

All public employers must provide paid sick leave and FMLA leave for employees not able to work due to many reasons related to COVID-19. HR 6201 became law yesterday which provides, among other items, that all public employees (and all private employees who work for a company with less than 500 employees), with qualifying COVID-19 related absences, are eligible for up to 80 hours of paid sick leave. Also, employees who have worked for at least 30 days must be afforded partially paid FMLA leave, beyond regularly available paid time off, to provide child care should school or regular child care programming be unavailable, due to COVID-19 closures.

Of particular significance, both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act require employees to be paid to care for their children who are unable to go to school or their regular child care provider, due to COVID-19 precautions.

Emergency Paid Sick Leave (EPSL):

Beginning April 2, 2020, all local governments must pay any full-time employee (even a new employee) 100% of the employee’s regular compensation for up to 80 hours of EPSL for the following reasons:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
  • The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

Payment for the above-stated reasons is capped at $511 per day, or $5,110 aggregate.

Employees must be paid two-thirds of the employee’s regular compensation for up to 80 hours of EPSL for the following reasons:

  • The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order or self-quarantine due to concerns related to COVID-19.
  • The employee is caring for a minor son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
  • The employee 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.

Payment for the above-stated three reasons is capped at $200 per day, or $2,000 aggregate.

Notably absent from the EPSL list is when an employee is directed by the employer to not report to work due to suspected exposure to COVID-19. This is particularly tricky because other laws, such as Workers Compensation laws, would generally make an employer responsible for lost wages due to an exposure which is proven to arise out of and in the course of his employment. Also, an employee being ordered to not report to work due to suspected exposure would likely be seeking a medical diagnosis which, if coupled with any COVID-19 symptom such as a cough or sore throat, would make the employee eligible for EPSL anyway. Additionally, requiring an employee, who is asymptomatic, to utilize regular paid benefit time may conflict with collective bargaining agreement requirements and also raises due process concerns. Safest and simplest practice would be to pay employees EPSL who are being ordered to self-quarantine.

A few additional notes:

  • Part-time employees are eligible for the same EPSL commensurate to their regular hours of work, on average, in a two week period of time. For example, a part-time employee who works 20 hours per week would be eligible for up to 40 hours of EPSL.
    • Please note that this must be provided even if the part-time employee does not regularly receive paid sick or other benefit time.
  • The EPSL is in addition to all other available benefit time, and an employer cannot require an employee to utilize other benefit time in lieu of or concurrently with EPSL.
  • Police officers and firefighters may be exempted from EPSL. The Act states: “an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.” While not clearly stated, this provision appears to be focused on not requiring an employer to provide additional leave to emergency responders for child care reasons, to ensure that adequate public safety employees are available at all times. But as written, an employer could specifically exempt public safety employees from any EPSL benefit.

Emergency Family and Medical Leave Expansion Act (FMLA Expansion)

Also beginning April 2, 2020, all public employers must provide an enhanced version of FMLA leave to employees to provide child care based on certain COVID-19 related issues. The expanded eligibility changes are that:

  1. Generally and until further rules may be published by the Department of Labor, all public employers, regardless of size (instead of 50 or more employees for regular FMLA), are subject to the FMLA Expansion;
  2. To be eligible for the FMLA Expansion, an employee need only work for 30 days (instead of 12 months under regular FMLA) and must not be able to work remotely;
  3. The additionally stated qualifying reason is that the “employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency,” which means any declared COVID-19 related emergency by the federal, state, or local government.

Similar to regular FMLA, employees who have a qualified Expanded Leave are generally provided protection of not losing their positions for up to the 12 week leave period.

However, unlike regular FMLA, which does not create any guarantee of payment, employees must be paid for up to 10 weeks (all but the first 2 weeks) of the leave period at two-thirds of their regular compensation rate, capped at $200 per day or $10,000 aggregate. Hourly employees’ compensation is based on the average of their past 6 months of employment, including any leave time taken in that 6 months. For employees without a 6 month work history, the compensation shall be based on “the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”

Connecting the EPSL and FMLA Expansion theoretically provides a continuous payment for up to 12 weeks at two-thirds of the employee’s compensation to care for a child due to COVID-19 related school or child care closing, because the EPSL provides the first 2 weeks, and the FMLA Expansion provides the last 10 weeks.

A few additional notes:

  • The FMLA Expansion does not clearly address whether an employee would be fully eligible for the expansion leave should that employee have utilized regular FMLA in the prior 12 months. The language is not conclusive, and the legislative history is inconsistent in this regard.
  • As with the EPSL, emergency responders may be excluded from the benefits provided under the FMLA Expansion.
  • Caution: Earlier versions of the FMLA Expansion contained much broader eligibility, such as for an employee’s own COVID-19 related illness, as well as the care of a family member suffering from such an illness. However, regular FMLA would still be available for those situations, but the enhanced eligibility and compensation requirements would not apply. Be aware that several articles on this subject may not be accurate in light of the final version of HR 6201.

A final, unfortunate note is that local governments are specifically excluded from the tax credits that HR 6201 otherwise offers to employers to offset some or all of the costs of EPSL and the FMLA Expansion.

There will likely be several clarifications related to the new legislation, and HR 6201 specifically contemplates that additional rules and regulations may be added by the Department of Labor.

For more information on addressing COVID-19 at the local government level, please also see our previous article: “COVID-19: Essentials for Your Unit of Government.”