EMPLOYEE LEAVE DURING THE COVID-19 PANDEMIC
EMPLOYEE LEAVE DURING THE COVID-19 PANDEMIC Under “normal” circumstances, employee leave is governed by the federal Family and Medical Leave Act (FMLA) or a similar state law. More recently, though, in response to decidedly abnormal circumstances related to the rapid spread of the coronavi-rus across the United States, Congress passed the Families First Coronavirus Response Act (FFCRA). Among other things, the FFCRA provides for paid sick leave and expanded family leave for employees during this health crisis. This article explains the basic obligations of employers under these laws. If you have questions or concerns about employee leave for any reason, please call us.
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I. FAMILY AND MEDICAL LEAVE ACT OF 1993 (FMLA)
The Family and Medical Leave Act of 1993 (FMLA) allows eligible employees to take up to 12 weeks of unpaid leave over a 12-month period, to deal with specific family or medical events, including: • The birth of the employee’s child; • The placement of a child with the employee for adoption or foster care; • To care for the employee’s spouse, child or parent who has a serious health condition; • To care for the employee’s own serious health condition. Generally speaking, the FMLA applies to employers with 50 or more employees. In order to take FMLA leave, an employee must have worked for a covered employer for at least a year and worked at least 1,250 hours during the 12 months prior to the leave. A NOTE RE: STATE LAW COUNTERPARTS TO THE FMLA Many states have enacted laws similar to the FMLA. State law may provide for more expansive leave or be more employee-friendly than the federal law. If you would like to learn more about the law in your state, this compilation of state laws is a good place to start: https://www.nolo.com/legal-encyclopedia/ state-family-medical-leave-laws.
II. FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) While the FMLA can be a boon to employees and their families during “normal” times, that leave is unpaid and the eligibility requirements are too restrictive for many employees during this time of pandemic. The FFCRA attempts to address these issues with two related and significant employee-leave provisions: (1) the Emergency Paid Sick Leave Act; and (2) the Emergency Family and Medical Leave Expansion Act. GOVERNING PRINCIPLES The following principles apply to both the sick leave and the family leave provisions of the FFCRA:
• Most employers are “covered” employers. The FFCRA applies to employers who have less than 500 employees. Employers with 500 or more employees are exempt. In addition, in very limited circumstances, a smaller employer (one with fewer than 50 employees) may be exempt from providing paid leave to certain employees when doing so would “jeopardize the viability of the business as an ongoing concern.”
• Most employees are covered. Under certain circumstances, healthcare providers and emergency responders may be excluded from the paid leave allowed under the FFCRA. While the FMLA can be a boon to employees and their families during “normal” times, that leave is unpaid and the eligibility requirements are too restrictive for many employees during this time of pandemic.
• An employer’s obligation to provide paid leave expires at the end of 2020. The FFCRA is meant to provide temporary relief to workers during this time of crisis. The law went into effect on April 1. The paid leave provi-sions—emergency sick leave and family leave—apply to leave taken between April 1, 2020 and December 31, 2020. With those caveats in mind, the sick leave and family leave provisions of the FFCRA work as follows:
EMERGENCY PAID SICK LEAVE
The law requires employers to provide employees with up to two weeks of paid sick leave for coronavirus-related reasons, as follows: An employee is entitled to full sick-leave pay if the employee cannot work because:
• He or she is under a quarantine order or has been advised to self-quarantine; or
• He or she is experiencing COVID-19 symptoms and is seeking a medical diagnosis. Full-time employees can receive up to 80 hours of paid sick leave under the law. Part-time employees can receive paid sick leave for the average number of hours they work over a two-week period. When leave is taken for these reasons, sick-leave pay is capped at $511 per day ($5,110 total). An employee is entitled to paid sick leave, at a rate of two-thirds his or her regular rate, up to $200 per day ($2,000 total), if the employee cannot work because:
• The employee is caring for another person who is under quarantine; or
• The employee is caring for his or her child, whose school or childcare provider is closed or otherwise unavailable because of COVID-19 precautions. Note that, unlike the FMLA, there is no length-of-service requirement for employees to be able to access emergency paid sick leave. Moreover, employers must offer emergency paid sick leave in addition to any paid sick leave the employer previously made available to its employees.
EMERGENCY FAMILY AND MEDICAL LEAVE
The “Emergency Family and Medical Leave Expansion Act” allows an employee to take up to 12 weeks of “public health emergency” leave to care for the employee’s child if the employee cannot work because the child’s school or childcare provider is closed as a result of the COVID-19 public health crisis. The first ten days (two weeks) of this leave are unpaid, but an employee can opt to use Emergency Paid Sick Leave (or accrued paid sick leave or paid vacation or other accrued paid leave) during these first two weeks. The remaining ten weeks are paid leave, at a rate of two-thirds the employee’s regular rate of pay, up to $200 per day ($10,000 total). To be eligible for public health emergency leave, an employee must have worked for the employer for at least 30 calendar days prior to taking leave. Note, too, that this expanded, paid family leave is available only to employees who are not able to work because their child’s school or childcare facility is closed, or his or her childcare provider is unavailable, due to COVID-19. PRACTICALLY SPEAKING In practice, these two provisions of the FFCRA—emergency sick leave and emergency family leave—work together so that, depending on his or her circumstances, an employee could take two weeks of paid sick leave, followed by ten weeks of paid family leave, for a total of twelve weeks of emergency paid leave. Under no circumstances, however, can paid employee leave under these two provisions exceed 12 weeks.
III. ANSWERS TO COMMON QUESTIONS
1. HOW DO I COUNT EMPLOYEES TO DETERMINE IF THE FFCRA APPLIES TO MY BUSINESS?
The FFCRA applies to businesses with fewer than 500 employees, with limited exceptions for smaller businesses—those with fewer than 50 employees. Broadly speaking, the term “employee” includes anyone who is not an independent contractor. In determining whether you are a covered employer, you should count all full-time and part-time employees within the U.S., including employees on leave, shared employees (jointly-employed by you and another employer) and day laborers.
2. HOW DOES THE SMALL BUSINESS EXEMPTION WORK?
If your business has fewer than 50 employees, then you are not required to pay (a) sick leave to an employee because his or her child’s school is closed or childcare provider is unavailable due to COVID-19 or (b) emergency extended The first ten days (two weeks) of this leave are unpaid, but an employee can opt to use Emergency Paid Sick Leave (or accrued paid sick leave or paid vacation or other accrued paid leave) during these first two weeks. family leave, if making these payments would jeopardize the viability of your business. More specifically, to claim this exemption, you must be able to demonstrate that:
• Providing paid sick leave or family leave under these circumstances would put your business in the red (cause your expenses/financial obligations to exceed revenue) and result in the business being unable to operate at a minimal capacity; or • The employee seeking leave has special skills, responsibilities or knowledge, and his or her absence would put the business at risk financially or operationally; or
• You do not have enough qualified workers to keep your business operational if you grant leave to this employee (or employees). 3. CAN AN EMPLOYEE TAKE LEAVE UNDER BOTH THE FMLA AND THE FFCRA?
The short answer to this question is, “Yes, but…” This question highlights the fact that “sick leave” is distinct from “family and medical leave.” A qualified employee is entitled to Emergency Paid Sick Leave regardless of any FMLA leave he or she may have taken prior to April 1 (the effective date of the FFCRA). Emergency Family and Medical Leave (“public health emergency leave”) is treated differently. An employee is allowed a total of 12 weeks of family and medical leave in a 12-month period; that leave may take the form of traditional FMLA leave or emergency coronavirus-related family leave or some combination of both, but may not exceed 12 weeks in total. Paid sick leave is not family leave, so it does not count toward the 12 week total, unless the employee takes emergency paid sick leave during the first two weeks of his or her emergency family leave.
4. CAN AN EMPLOYEE TAKE MORE THAN 80 HOURS OF EMERGENCY PAID SICK LEAVE IF HE OR SHE MEETS MORE THAN ONE QUALIFYING CONDITION?
No. Emergency paid sick leave is capped at 80 hours (two weeks) for full-time employees and the average number of hours worked over a two-week period for part-time employees. This is true even if an employee qualifies for paid sick leave on more than one occasion. For example, if an employee takes two weeks’ emergency paid sick leave to care for his or her spouse, who is under a doctor-ordered quarantine for COVID-19, and, subsequently, the employee start to feel ill and is advised to self-quarantine, that employee cannot get another round of paid sick leave under the FFCRA.
5. I HAVE A PAID SICK LEAVE POLICY IN PLACE. CAN I COUNT EMERGENCY PAID SICK LEAVE UNDER THE FFCRA TOWARD THE PAID SICK LEAVE I ALREADY OFFER TO MY EMPLOYEES?
No. The paid sick leave mandated by the FFCRA is separate from and in addition to any paid sick leave you already offer under a company policy. Likewise, you cannot require an employee to use employer-provided paid leave (e.g., vacation, medical, personal or other leave), whether accrued or not, before or concurrently with emergency paid sick leave. Nor can you deny an employee emergency paid sick leave because that employee took paid sick leave prior to April 1 (the effective date of the FFCRA), even if that earlier leave was for a reason specified in the FFCRA.
6. IF I HAVE TO CLOSE MY BUSINESS (OR A PARTICULAR WORKSITE), DO I STILL HAVE TO PAY EMERGENCY SICK LEAVE OR FAMILY LEAVE?
Generally, no, but it depends on when your business closed and whether the employee was on leave at that time. More specifically: If you closed your business (or a particular worksite(s)) before April 1, 2020, when the FFCRA took effect, then you do not have to pay emergency sick leave or family leave. If you closed your business/worksite on or after April 1, 2020, you do not have to pay emergency sick leave or family leave to any employee who was not already on leave at the time the business/worksite closed, even if the employee had requested leave. You do, though, have to pay any emergency sick leave / family leave that is owed to any employee who already was on leave at the time of the closure. As of the date the business/worksite closes, your obligation to provide paid leave under the FFCRA ends.
7. DO I HAVE TO PAY FURLOUGHED EMPLOYEES EMERGENCY SICK LEAVE OR FAMILY LEAVE?
No. You do not have to pay emergency sick leave or emergency family leave to any employee who is furloughed because you do not have enough work or business to support that employee. 8. DO I HAVE TO CONTINUE TO PROVIDE HEALTH COVERAGE TO EMPLOYEES WHO ARE OUT ON EMERGENCY SICK LEAVE AND/OR EMERGENCY FAMILY LEAVE? Yes. If you provide group health coverage to your employees, you must maintain that same coverage for any employee who takes emergency paid sick leave or family leave. If you closed your business (or a particular worksite(s)) before April 1, 2020, when the FFCRA took effect, then you do not have to pay emergency sick leave or family leave. 7 EMPLOYER UPDATE: EMPLOYEE LEAVE DURING THE COVID-19 PANDEMIC
9. DO I HAVE TO HOLD A JOB FOR AN EMPLOYEE WHO TAKES EMERGENCY PAID LEAVE?
Generally, yes. An employee is entitled to come back to the same position, or an equivalent position, when he or she returns from sick leave or emergency family leave. However, under certain circumstances, the general rule may not apply to highly compensated (“key”) employees and small businesses (those with fewer than 25 employees). Return to work issues can be complicated. If you have questions, reach out to an experienced employment lawyer for guidance.
10. WHAT INFORMATION DO I NEED TO COLLECT AND MAINTAIN WHEN AN EMPLOYEE REQUESTS LEAVE UNDER THE FFCRA?
Good recordkeeping is critical. To protect your business and your employees, collect the following information from every employee who requests emergency paid sick leave and/or emergency paid family leave:
• The name of your employee requesting leave;
• The date for which leave is requested;
• The reason for the requested leave; and
• A statement from the employee that he or she is unable to work because of the reason for the requested leave. In addition, collect the following information from any employee who requests sick leave on a quarantine-re-lated basis:
• The name of the government official/agency that issued the quarantine order, if the individual, personally, is under a quarantine order or is caring for a person subject to a quarantine or isolation order; or
• The name of the healthcare provider who advised the employee to self-quarantine. In addition, collect the following information from any employee who requests leave to care for his or her child whose school is closed or whose childcare provider is unavailable due to COVID-19:
• The name of the child needing care;
• The name of the school/daycare center or place of care that is closed, or the name of the childcare provider who is unavailable; and • A statement from the employee that no other appropriate childcare option is available. Note: You should collect and keep all of this information regardless of whether the employee is granted or denied leave. Finally, tax credits are available to employers that provide paid leave under the FFCRA. In order to claim these credits, you will need to provide the IRS with the information required to complete the necessary forms. To learn more about these tax credits and the information you need to obtain from your employees, visit https://www.irs.gov/newsroom/ covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.