EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT
1. What changes were made to the FMLA?
The Emergency Family and Medical Leave Expansion Act (EFMLEA) amends the FMLA to create “public health emergency leave.”
2. What is public health emergency leave?
The term ‘‘public health emergency’’ (PHE) means an emergency with respect to COVID-19 declared by a Federal, State, or local authority.
3. Which employees are eligible for PHE leave?
An ‘‘eligible employee’’ is an employee who has been employed by a covered employer for at least 30 calendar days.
4. Which employers are required to provide PHE leave?
Employers who employ fewer than 500 employees must provide PHE leave. However, an employer will not be subject to liability for failure to provide PHE leave if it does not meet the definition of employer for other FMLA purposes (one that employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year). In addition, 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 the PHE provisions.
5. What qualifies for PHE leave?
The term ‘‘qualifying need related to a public health emergency,’’ with respect to leave, means 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.
6. Is PHE leave paid or unpaid?
The first 10 days for which an employee takes PHE leave may consist of unpaid leave. An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave in accordance with the provisions of the FMLA related to substitution of paid leave. 1 An employer must provide paid leave for each day of PHE leave that an employee takes after taking unpaid leave for 10 days.
7. How much must an employer pay for PHE leave?
Paid leave for an employee must be calculated based on an amount that is not less than twothirds of an employee’s regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work. However, in no event will such paid leave exceed $200 per day and $10,000 in the aggregate.
8. How is PHE leave calculated for employees whose schedule varies from week to week?
In the case of an employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked if such employee had not taken PHE leave, the employer must use the following in place of such number: A number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type. If the employee did not work over such period, then the employer should use 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.
9. Are employees required to give notice of the need for PHE leave?
In any case where the necessity for PHE leave is foreseeable, an employee must provide the employer with such notice of leave as is practicable.
10. Must employees be restored to their same positions after taking PHE leave?
Job restoration under the FMLA does not apply with respect to an employee of an employer who employs fewer than 25 employees if the following conditions are met:
- The employee takes PHE leave.
- The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment; and are caused by a public health emergency during the period of leave.
- The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.
- If the reasonable efforts of the employer fail, the employer makes reasonable efforts during the “contact period” (the 1-year period beginning on the earlier of the date on which the qualifying need related to a public health emergency concludes; or the date that is 12 weeks after the date on which the employee’s PHE leave commences) to contact the employee if an equivalent position becomes available.
11. What is the effective date of the EFMLEA?
The EFMLEA takes effect on April 2, 2020.
12. When does the EFMLEA expire?
The EFMLEA expires on December 31, 2020.
13. Will regulations be issued?
The Secretary of Labor has the authority to issue regulations for good cause to exclude certain health care providers and emergency responders from the definition of eligible employee and to exempt small businesses with fewer than 50 employees from the requirements when the imposition of such requirements would jeopardize the viability of the business as a going concern.
EMERGENCY PAID SICK LEAVE ACT
1. What is the Emergency Paid Sick Leave Act?
The Emergency Paid Sick Leave Act (EPSLA) requires employers to provide each of its employees with paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:
- 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. - The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
- The employee is caring for a 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. Except that 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.
2. Which employees are covered by the EPSLA?
For private employers, the EPSLA defines employees consistent with the Fair Labor Standards Act of 1938.
3. Which employers are covered by the EPSLA?
Covered private employers include any person engaged in commerce or in any industry or activity affecting commerce that employs fewer than 500 employees and includes any person acting directly or indirectly in the interest of an employer in relation to an employee; and any successor in interest of an employer.
4. How much sick time is required under the EPSLA?
Under the EPSLA, full-time employees are entitled to paid sick time of 80 hours and part-time employees are entitled to a number of hours equal to the number of hours that such
employee works, on average, over a 2-week period. Paid sick time provided to an employee under the EPSLA will cease beginning with the employee’s next scheduled work-shift immediately following the termination of the need for paid sick time.
5. How much must an employer pay for sick time under the EPSLA?
The term ‘paid sick time’ means an increment of compensated leave that is provided by an employer for use during an absence from employment for a covered reason and is calculated based on the employee’s “required compensation” and the number of hours the employee would otherwise be normally scheduled to work. The employee’s required compensation must be not less than the greater of the following: The employee’s regular rate of pay; the federal minimum wage rate; and the minimum wage rate in effect for such employee in the applicable State or locality, whichever is greater, in which the employee is employed. With respect to any paid sick time provided for any use described in paragraph (4), (5), or (6) above, the employee’s required compensation must be two-thirds of the amount described in this paragraph.
In no event will such paid sick time exceed:
- $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) (government-ordered quarantine or isolation; doctor-advised self-quarantine; or symptomatic and seeking a medical diagnosis) ; and
- $200 per day and $2,000 in the aggregate for a use described in paragraph (4), (5), or (6) (caring for an individual who is subject to a government-ordered quarantine/isolation or doctor-advised self-quarantine; caring for a child if school or child care is unavailable due to COVID-19; or a substantially similar condition specified by HHS).
6. How are part-time employees paid sick time under the EPSLA?
In the case of a part-time employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the
employee would have worked if such employee had not taken paid sick time, the employer must use the following in place of such number: a number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes the paid sick time, including hours for which the employee took leave of any type. If the employee did not work over such period, the employer must use 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.
7. May employees be required to give notice of leave under the EPSLA?
After the first workday (or portion thereof) an employee receives paid sick time under the
EPSLA, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.
8. May employees carryover paid sick time under the EPSLA?
Paid sick time under the EPSLA will not carry over from one year to the next.
9. Does the EPSLA require payout of unused paid leave upon termination?
The EPSLA does not require financial or other reimbursement to an employee upon the
employee’s termination, resignation, retirement, or other separation from employment for
paid sick time under the EPSLA that has not been used by such employee.
10. May an employer require an employee to find a replacement for his position while using EPSLA leave?
An employer may not require, as a condition of providing paid sick time under the EPSLA, that the employee search for or find a replacement employee to cover the hours during which the employee is using paid sick time.
11. Is there a waiting period for eligibility under the EPSLA?
The paid sick time under the EPSLA will be available for immediate use by the employee for the purposes described in the statute, regardless of how long the employee has been employed by an employer.
12. May an employer require or prohibit an employee from using EPSLA leave before other paid leave?
An employee may first use the paid sick time under the EPSLA for the purposes described in the statute. An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time under the EPSLA.
13. Are employers required to post a notice regarding the EPSLA?
Each employer must post and keep posted, in conspicuous places, a notice, to be prepared or approved by the Secretary of Labor, of the requirements described in the EPSLA. Not later than 7 days after the date of enactment of the EPSLA, the Secretary of Labor must make publicly available a model notice that meets the requirements the statute.
14. Does the EPSLA prohibit employers from taking certain action based on an employee’s use of EPSLA leave?
It is unlawful for any employer to discharge, discipline, or in any other manner discriminate
against any employee who takes leave in accordance with the Act and has filed any complaint or instituted or caused to be instituted any proceeding under or related to the Act (including a an enforcement proceeding), or has testified or is about to testify in any such proceeding.
15. What are the enforcement provisions for the EPSLA?
An employer who fails to pay sick leave under the EPSLA will be considered to have failed to pay minimum wages in violation of the Fair Labor Standards Act and will be subject to applicable penalties.
An employer who willfully discharges, disciplines or discriminates against an employee who takes leave under the EPSLA will be considered to be in violation of section 15(a)(3) of the Fair Labor Standards Act and will be subject to applicable penalties.
16. Does the EPSLA preempt state or local law or supersede collective bargaining agreements or existing employer policies?
Nothing in the EPSLA will be construed in any way to diminish the rights or benefits that an employee is entitled to under any other Federal, State, or local law; collective bargaining agreement; or existing employer policy.
17. What is the effective date of the EPSLA?
The EPSLA takes effect on April 2, 2020.
18. When does the EPSLA expire?
The EPSLA and its requirements expire on December 31, 2020.
19. Will the Department of Labor issue regulations?
Not later than 15 days after the date of the enactment of the EPSLA, the Secretary of Labor must issue guidelines to assist employers in calculating the amount of paid sick time. The Secretary of Labor has the authority to issue regulations for good cause: (1) to exclude certain health care providers and emergency responders from the definition of employee including by allowing the employer of such health care providers and emergency responders to opt out; (2) to exempt small businesses with fewer than 50 employees from the requirements when the imposition of such requirements would jeopardize the viability of the business as a going concern; and (3) as necessary, to carry out the purposes of this Act, including to ensure consistency between the EPSLA and the EFMLEA.
To learn more about the issues raised by this client bulletin, please contact Catherine Guttman-McCabe at cmccabe@potomaclaw.com.
