On March 18, 2020, President Trump signed into law the Families First Coronavirus Relief Act, which creates two new emergency paid leave requirements in response to the COVID-19 global pandemic: The Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. Both regulations became effective on April 1, 2020. The Department of Labor has provided guidance on interpreting both regulations. Employees that are eligible may take paid sick leave under the EPSLA and EFMLEA.
COVID-19 Related Reasons for Leave
The EPSLA requires employers to provide paid sick leave to employees who are unable to work for any of the following six reasons:
- is subject to a quarantine or isolation order related to COVID-19;
- was advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
- is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- is caring for an individual who is subject to a quarantine or isolation or order has been advised to self-quarantine;
- is caring for his or her son or daughter whose school or place of care has been closed;
- is experiencing any other substantially similar condition.
The EFMLEA requires employers to provide extended family and medical leave for employees who are unable to work because they are caring for a while whose school or place of care is closed or unavailable due to COVID-19.
Each regulation has different eligibility requirements for employees. Under the EPSLA, an employee is eligible for two weeks of fully or partially paid sick leave for COVID-19 related reasons if they work for a private sector employer with fewer than 500 employees. Employees are automatically eligible for this leave and there is no durational employment requirement. Conversely, under the EFMLEA, an employee is eligible if they have been employed for at least 30 days prior to the leave request. Part time employees are eligible for leave for the number of hours that the employee is normally scheduled to work over the period of leave.
Circumstances Permitting Leave
An employee who is experiencing COVID-19 symptoms is eligible to take paid sick leave for the time spent taking affirmative steps to obtain a medical diagnosis. This includes time spent making, waiting for, or attending an appointment for a test for COVID-19. Generally, this does not cover time spent self-quarantining without seeking a medical diagnosis.
Similarly, an employee may take paid sick leave to care for his/her spouse so long as but for caring for the individual, the employee would be able to perform work for the employer. There must be a genuine need to care for the individual and the employee must have a personal relationship with the individual. Personal relationships include an immediate family member, roommate, or similar person.
Employees may take leave to care for their child if their school is closed or their childcare provider is unavailable if there is an actual need to care for the child, and the employee is actually caring for the child. Generally, an employee is not eligible to take such leave if another suitable individual (such as a co-parent, co-guardian, or the usual childcare provider) is available to provide the care the employee’s child needs. Employee’s should be aware that their employer may ask if there is someone else who can care for their child. Additionally, an employer may ask the employee to provide (1) the name of the child being cared for; (2) the name of the school, place of care, or childcare provider that is closed or unavailable; and (3) a statement representing that no other suitable person is available to care for the child.
Employers may require employees taking leave under these regulations to provide signed documentation that contains the following: (1) the employee’s name; (2) date(s) of requested leave; (3) COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework. The employer may also request additional information in accordance with the COVID-19 qualifying reason for leave.
Concurrent Use of EPSLA and EFMLEA
It is important for employees to note that under the EFMLEA, the first two weeks of leave are unpaid. However, an employee, if eligible, may elect to use EFMLEA leave concurrently with any leave offered under the employer’s policies that the employee could ordinarily use to care for the child. This includes vacation, personal leave, PTO, etc. Similarly, during the unpaid period an employee may also take the two weeks of paid sick leave provided by the EPSLA. Paid sick leave may be used for the same reason as expanded family and medical leave i.e., to care for a child whose school or place of care is closed, or whose childcare provider is unavailable for a COVID-19 related reason.
Employees should also note that an employee who takes leave under these regulations is entitled to continued healthcare coverage under the employer’s group health plan on the same terms as if the employee did not take leave.
Generally, an employee is ordinarily entitled to be restored to the same or equivalent position upon return from leave. However, if there are general layoffs that would have affected the employee’s position regardless of whether the leave is taken, the employee’s job may not be protected.
Additional information for employees is available through the Department of Labor at: https://www.dol.gov/agencies/whd/pandemic
Our lawyers are closely monitoring the latest developments and guidance from government and public health authorities and have the skill and experience to guide employees through this difficult and uncertain time.
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