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Emergency FMLA and Sick Leave Legislation

03/20/2020

Congress has enacted new legislation, which will become effective April 2, 2020, specifically directed at the COVID-19 virus. The legislation contains two temporary provisions providing paid leave to employees forced to miss work because of the COVID-19 outbreak: 

  1. emergency expansion of the Family Medical Leave Act (FMLA); and 
  2. a new federal paid sick leave law. 

The key provisions of the legislation are set forth below.

Note: On March 30, 2020, the Department of Labor issued guidance, a fact sheet, and a mandatory notice related to the emergency paid sick leave and expanded family and medical leave (“EFMLA”) permitted under the Families First Coronavirus Response Act (“FFCRA”) legislation. Read our blog about the guidance here.

Emergency Family and Medical Leave Act 
The new legislation states that private-sector employers with fewer than 500 employees must provide up to 12 weeks of job-protected FMLA leave where an employee is unable to work (or telework). Employees are provided emergency FMLA only if they need to care for a minor child if the child’s school or place of childcare has been closed or is unavailable due to a public health emergency.  To be eligible, the employee must have been on the payroll for at least 30 calendar days. 

The first ten (10) days of emergency FMLA leave can be unpaid. An employee can elect to substitute accrued vacation, personal, or sick leave for this unpaid emergency leave, but an employer may not require an employee to do so.

The remaining ten (10) weeks of FMLA leave is required to be paid, generally at two-thirds of the employee's regular rate, for the number of hours the employee would otherwise be scheduled to work. The emergency FMLA benefits will be capped at $200 a day (or $10,000 in the aggregate).  This legislation is temporary and is scheduled to sunset as of December 31, 2020.

Emergency Sick Paid Leave
Under the new legislation, private employers with fewer than 500 employees, and covered public employers, must provide 80 hours of paid sick time where the employee is unable to work (or telework) because: 

  1. the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; 
  2. a health care provider has advised the employee to self-quarantine because of COVID-19; 
  3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; 
  4. the employee is caring for an individual subject or advised to quarantine or self-isolate; 
  5. the employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions; or 
  6. the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.  

This legislation also applies to workers who work less than full time. Employers are required to cover the typical number of hours the employee is scheduled to work in a two-week period.

Unlike the emergency FMLA requirements, an employee is immediately eligible for this leave. There is no 30-day-on-payroll requirement.

Paid-sick-leave benefits will be immediately available when the law becomes effective and capped at $200 a day when the employee is caring for someone else and $511 when the worker is caring for themselves. 

For questions about the new legislation or other employment matters, please contact Becky DeCook or Stephanie Loughner, Co-Chairs of the Employment Group.

ABOUT THE AUTHOR

Rebecca B. DeCook

Attorney