Effective April 1, 2020, the Department of Labor (“DOL”) issued temporary regulations answering many key questions about the implementation of the Emergency Paid Sick Leave and the Emergency Family Medical Leave Expansion Act. The temporary regulations are in effect from April 1 through December 31, 2020. Below is a summary clarifying key points related to these new leave laws.
The two new employment leave laws went into effect on April 1, 2020:
(1) Emergency Paid Sick Leave Act (“EPSLA”): which provides up to 80 hours of paid sick leave to employees under circumstances, such as sickness, quarantine by order of federal, state or local agency or on recommendation of a health care provider, and school closures all due to or related to COVID-19; and
(2) Emergency Family Medical Leave Expansion Act (“EFMLEA”): which expands rights to Family Medical Leave for employees who are unable to work because employee must care for a child whose school or primary day care has closed due to COVID-19 precautions.
Is There an Exemption to EPSLA and EFMLEA for Employers with Fewer Than 50 Employees?
Yes, provided that the employer meets the following criteria:
(1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
(2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
(3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.
For reasons (1), (2), and (3), the employer may deny EPSLA or EFMLEA only to those otherwise eligible employees whose absence would cause the small employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.
If a small employer decides to deny the leave under this exception, its authorized officer must document the reasons why and the employer must keep those records for four years.
Emergency Paid Sick Leave Act Key Terms
Which Employers Are Required to Provide Leave?
The EPSLA provisions apply to all private employers with fewer than 500 employees and public employers with at least one employee, with an exception for employers with fewer than 50 employees who meet the criteria set forth in the regulations and for certain employees such first responders and health care workers.
When Are Employees Entitled to Emergency Paid Sick Leave?
Employers are required to provide employees with paid sick leave for any of the following reasons, all of which are related to COVID-19:
- 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 is seeking a medical diagnosis.
- The employee is caring for an individual who is subject to a federal, state or local quarantine isolation order or who has been advised by a health care provider to self-quarantine.
- The employee is caring for his or her child because the child’s school or primary care has closed, or the child’s care provider 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.
Does “Subject to a Federal, State or Local Quarantine or Isolation Order” Mean a Shelter in Place Order or a Stay at Home Order?
Yes, the phrase “subject to a federal, state or local quarantine or isolation order” includes stay at home or shelter in place order; however, it is the Employee who must be subject to the shelter in place or stay at home, not the business. For example, if an employer shuts down because of a shelter in place order or a stay at home order and 90% of its employees are told not to come to work because there is no work available for them, those employees are not eligible for paid sick leave. They may be eligible for unemployment insurance.
Under What Circumstances Does an Employee Receive Sick Pay For Being Advised to Self- Isolate?
Employee may receive sick pay when his or her health care provider advises him or her to self-quarantine:
- (i) based on the medical care provider’s belief that—
- (A) the Employee has COVID-19;
- (B) the Employee may have COVID-19; or
- (C) the Employee is particularly vulnerable to COVID-19; and
- (ii) following the advice of a health care provider to self-quarantine prevents the Employee from being able to work, either at the Employee’s normal workplace or by Telework.
Under What Circumstances Does an Employee Receive Sick Pay For Caring for an Individual?
An employee may receive sick pay when the employee must care for an individual who is subject to a federal, state or local quarantine or isolation order or who has been advised by a health care provider to self-quarantine.
Individual means the employee’s immediate family member, a person who regularly resides in Employee’s home, or a similar person with whom the Employee has a relationship that creates an expectation that the Employee would care for the person if he or she were quarantined or self-quarantined. “Individual” does not include persons with whom the Employee has no personal relationship.
How Much Time Off Are Employees Allowed?
Full-time employees are eligible for 80 hours of paid sick leave and part-time employees are eligible for the number of hours equal to the number of hours the part-time employee works on average in two weeks.
How Much Pay Do Employees Get As Sick Pay?
For time taken by an employee (1) who is subject to federal state or local quarantine or isolation order or (2) whose health care provider recommended to him or her to self-quarantine or (3) who is experiencing symptoms related to COVID-19 and is seeking a medical diagnosis, the employer must pay the sick leave at the employee’s regular rate of pay but the pay does not need to exceed $511 per day or $5110 in the aggregate.
For time taken for (1) the care of an individual subject to federal state or local quarantine or isolation order or whose health care provider recommended to him or her to self-quarantine or (2) for the care of a child whose school or primary care facility closed due to COVID 19 reasons or (3) for symptoms the Secretary of Health and Human Services later designates, sick pay is paid at two-thirds of the employee’s regular rate of pay but it does not need to exceed $200 per day or $2000 in the aggregate.
May I Use My Existing Paid Leave Policies?
No. Employers may not require employees to exhaust their current sick leave before using leave under EPSLA. Furthermore, employers cannot change their existing paid leave policies, like vacation or paid time off (PTO). Employers cannot change their existing policies.
Does This Leave Expire or Carry-over to the Next Year?
PSLA sick leave does not carry over from year-to-year and the PSLA entitlements expire on Dec. 31, 2020.
Do I Have to Give My Employees Notice?
Yes. The law requires employers to hang the poster created by the Department of Labor in a conspicuous place on the premise of your business where notices to employees are customarily posted, such as an employee break room. You may find the poster here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
Emergency Family Medical Leave Expansion Act Key Terms
Which Employers Are Required to Provide Leave?
The Emergency Family and Medical Leave Expansion Act (EFMLEA) also applies to private employers with fewer than 500 employees, with an exception for employers with fewer than 50 employees who meet the criteria set forth in the regulations and for certain employees such first responders and health care workers.
Which Employees Are Eligible?
Under the EFMLEA, employees who have worked for the employer for at least 30 days (a significant change from the one year of employment requirement under the existing FMLA) will be eligible for EFMLEA.
When are Employees Entitled to Take EFMLA and How Much EFMLEA Must Be Granted?
Eligible employees may take up to 12 weeks of EFMLA leave for the following purpose:
- To care for a “Son or Daughter” under the age of 18 of the employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a declaration of an emergency due to COVID 19 by a federal, state or local authority.
- “Son or Daughter” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age; or 18 years of age or older who is incapable of self-care because of a mental or physical disability.
What Amount of EFMLA Leave Must Be Paid?
Under EFMLEA, the first two weeks of such leave are unpaid. An employee may choose to substitute accrued vacation leave, personal leave, or other medical or sick leave during this period, but an employer may not require an employee to do so. After the two weeks of unpaid leave, employers must provide up to 10 weeks of paid EFMLA leave at a rate of no less than two-thirds of the employee’s regular rate of pay with a cap of $200 per day and $10,000 in the aggregate.
Does EFMLA Expire?
The EFMLEA will remain in place for the one-year period following enactment.
Key Provisions for Both EPSLA and EFMLEA Laws
What Is the Employer Permitted to Request From the Employee When the Employee Requests EPSLA and EFMLEA Leave?
An employer can expect the employee to provide reasonable notice of the need for leave. An employer may ask the employee to provide documentation in support of paid sick leave or expanded family and medical leave. Such documentation consists of a signed statement of the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) an oral or written statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.
- For leave due to a federal, state or local isolation or quarantine order, the employee must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.
- For leave due to a recommendation by the employee’s health care provider that the employee self-isolate for COVID-19 related reasons, the employee must provide the name of the health care provider who made the recommendation.
- For leave due the employee’s need to care for an individual who was ordered by the federal, state or local authority to self-isolate or to remain quarantined or whose health care provider recommended that the individual self-quarantine, the employee must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who made the recommendation.
- For leave due to the employee’s need to care for his or her child due to a school closure or primary day care closure for a COVID-19 related reason, the employee must provide: (1) the name of the child being care for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
Is the Leave Job-Protected and Do Any Exceptions Apply?
Yes, an employer must offer a returning employee the same or equivalent position upon his or her return to work. An employee is not protected from employment actions, such as lay-offs that would have affected the Employee regardless of whether he or she took the leave. Yes, other exceptions to EFMLEA may apply.
Exception for Employers with Fewer Than 25 Employees: The EFMLEA’s job restoration provision does not apply to an employer who has fewer than twenty-five employees, provided the employer meets all four of the following criteria:
- The employee took leave to care for his or her son or daughter whose school or place of care was closed or whose child care provider was unavailable;
- The employee’s position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by a public health emergency (i.e., due to COVID-19 related reasons) during the period of the employee’s leave;
- The employer made reasonable efforts to restore the employee to the same or an equivalent position; and
- If the employer’s reasonable efforts to restore the employee fail, the employer makes reasonable efforts for a one-year period of time (beginning from the date on which the leave concludes or twelve weeks after the leave began, whichever is earlier) to contact the employee if an equivalent position becomes available.
Exception for Key Employees under EFMLEA: In addition, the existing limitation to job restoration for “key” employees under the FMLA is applicable to leave taken under the EFMLEA.
Does the Employer Have to Maintain Health Insurance under EPSLA and EFMLEA?
Yes. Employer must maintain coverage on the same conditions as coverage would have been provided if the employee had continuously been employed during the entire leave period. For example, the employee is still required to pay his or her share of any insurance premiums that the employee previously elected.
Does the Employer Have Record-Keeping Requirements?
Yes. Employers are required to retain all documentation related to the leave for four years, regardless of whether leave was granted or denied. If an employee verbally requested or explained the support for his or her request for paid sick leave or expanded family and medical leave, the employer is required to document such verbal information and retain the documentation for four years. If an employer denies an employee’s request for leave pursuant to the small business exemption (see above), the employer must document its authorized officer’s determination that the prerequisite criteria for that exemption are satisfied and retain such documentation for four years. The IRS may have additional documentation requirements to claim applicable tax credits.
Still Have Questions?
Please continue to watch for new developments. Although the new federal paid leave requirements are now more clear, local authorities in California are considering additional measures to provide paid leave more broadly then federal law now provides. If you have questions, contact Eileen Kennedy, Senior Attorney, Berliner Cohen LLP, at Eileen.Kennedy@berliner.com.