What are an Employer’s Legal Obligations to Provide Paid Leave under the new COVID-19 Leave Laws?

With the recent passing of the Families First Coronavirus Response Act (“FFCRA”), Congress has expanded the coverage and application of the Family Medical Leave Act (“FMLA”) through the Emergency Family Medical Leave Expansion Act (“EFMLEA”). Additionally, Congress created the Emergency Paid Sick Leave Act (“EPSLA”), which imposes a federal requirement for employers to provide paid sick leave in certain situations.

Typically, the FMLA has only applied to employers with more than 50 employees and only employees who had been with an employer for more than 12 months were eligible for the benefits. However, the FFCRA now expands this coverage to include small businesses, like yours, that did not have to worry about these rules before.

Emergency Family Medical Leave Expansion Act

The EFMLEA requires all employers with fewer than 500 employees to provide up to 12 weeks of leave for any employee who has worked for the employer for at least 30 days. 

When is an Employee Entitled to Leave?

A Qualifying Need occurs when the employee is unable to work or telework due to a need to care for his or her son or daughter under the age of 18 if either 

1. the child’s school or place of care has been closed, or 
2. the child’s care provider is unavailable, due to a public health emergency.

What are the Paid Leave Entitlements under the EFMLEA?

Once an eligible employee has requested leave under the EFMLEA, the employer is required to grant up to 12 weeks of leave. Only 10 of those weeks, however, must be paid leave. The initial two weeks (10 workdays), can be unpaid; although, the employee may choose to supplement this unpaid leave with any accrued paid time off normally offered by the employer. The remaining 10 weeks of leave must be paid leave in accordance with the payment requirements under the EFMLEA.

Under the statute, an employee is entitled to no less than 2/3 of their regular rate of pay for the number of hours per week they are normally scheduled. If an employee works a variable schedule and the employer cannot determine with certainty the number of hours the employee would work, the paid leave is based on the average scheduled hours per day over the previous 6-month period.

If the employee has worked fewer than 6 months, the hours will be the number of hours the employee reasonably expected to be scheduled when first hired. In no event will the employer be required to pay the employee more than $200 per day and $10,000 in aggregate for the 10-week paid leave.

What are the Employee’s Job Restoration Rights?

If an employer has more than 25 employees, they are required to restore an employee who has taken leave under the EFMLEA to the employee’s same or equivalent position.

Employers with fewer than 25 employers, however, are not required to do so, as long as the (i) returning employee’s position no longer exists due to economic hardship or other operating conditions affecting employment and caused by a public health emergency, (ii) the employer takes reasonable efforts to return the employee to an equivalent position, and (iii) if unable to return the employee to an equivalent position, the employer must make reasonable efforts to contact the employee about available, equivalent positions for one year, beginning the earlier of, the end of the employee’s qualifying need or 12 weeks after the employee’s leave began.

Emergency Paid Sick Leave Act

The EPSLA provides that an employer must grant all full-time employees up to 80 hours of paid leave, so long as the employee is unable to work or telework due to any one of the following Qualifying Needs:

• 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 medical diagnosis;
• The employee is caring for an individual who is subject to an order or advisement as described in (1) or (2) above;
• The employee is caring for his or her son or daughter because the school or place of care for the son or daughter has been closed or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions; or
• 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 Secretary of Labor.

Part-time employees must be granted the number of hours of paid leave calculated based on the average number of hours worked over a two-week period. The employee’s rate of pay depends on which Qualifying Need the leave is being taken for. For leave taken due to Qualifying Need (1), (2), or (3) above, an employee is entitled to their normal rate of pay. However, in no event will the employee’s pay exceed $511 per week or $5,110 in total. For leave taken due to Qualifying Need (4), (5), or (6) above, an employee is entitled to 2/3 of the employee’s regular rate of pay, but in no event more than $200 per day and $2,000 total.

An employer may not force an employee to use accrued paid time off in lieu of the leave granted by the EPSLA, and also may not require an employee to find a replacement before taking leave.  Eligibility under the statute begins immediately, and an employee may take leave under the EPSLA regardless of their service time, so long as the employee is unable to work or telework due to a qualifying need.

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