UPDATED: APRIL 3, 2020 @ 6:30 PM
On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“Families First Act”). The Families First Act expands FMLA by extending existing protections and introducing emergency paid leave. The Families First Act includes several provisions within it, the Emergency Family and Medical Leave Expansion Act (“Expansion Act”) and the Emergency Paid Sick Leave Act (“Sick Leave Act”). The new FMLA provisions and Sick Leave Act applies to all public agencies, including public school districts, regardless of the number of employees. Both provisions go into effect on April 1, 2020, 15 days after the President signed the bill into law. The Families First Act is set to expire on December 31, 2020.
Emergency Family and Medical Leave Expansion Act:
The Families First Act created the Expansion Act to address childcare during the public health emergency of COVID-19. The Expansion Act allows employees to take up to 12 weeks of job-protected FMLA leave if the employee is unable to work (or telework) in order to care for their child in the event that the child’s school or ordinary place of care is closed, or the childcare provider is unavailable. This is different from the Sick Leave Act, which permits an employee to take paid sick leave for multiple reasons as set forth listed below.
During a public emergency, the Expansion Act states that the first 10 days of FMLA leave are unpaid. Although not required, an employee may substitute any accrued vacation leave, personal leave, or medical or sick leave for the unpaid leave during this period. However, after 10 days, the employer must provide paid leave for each subsequent day. The leave is calculated based on the number of hours the employee normally would be scheduled to work and cannot be less than two-thirds of the employee’s regular rate of pay. It is important to note that this family and medical leave is capped at $200 per day and $10,000 in the aggregate. The leave will continue until the qualifying condition no longer exists or once the 12 weeks expire.
The Expansion Act specifically indicates that it applies to those employees who have been employed for at least 30 calendar days. The 30-day qualification will only apply for the temporary period this Act is in effect (through December 31, 2020). Where the necessity for public health emergency leave is foreseeable, the employee must provide the employer with “such notice of leave as is practicable.”
Job restoration is not required under the Expansion Act if the position no longer exists as a result of the public health emergency. However, the employer must make reasonable efforts to restore the employee to their position. If the reasonable efforts fail, the employer must contact the employee if an equivalent position becomes available within one year of when the public health emergency concludes or the date that the employee’s leave commences, whichever is earlier.
Emergency Paid Sick Leave Act:
The Families First Act also created a new federal emergency paid leave benefits program under the Sick Leave Act. “Emergency leave day” is defined as a day in which an individual is unable to work (or telework) due to one of the following qualifying reasons related to COVID-19 :
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- The employee is 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 either subject to a Federal, State or local quarantine or isolation order related to COVID-19 or is advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is caring for their son or daughter if the child’s school or place of care is closed, or the childcare provider of the child 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 the Secretary of Labor.
The Sick Leave Act applies to all public agencies, including public school districts, with one or employees. For those employers with fewer than 50 employees, the Department of Labor has authority to exempt them from having to pay these benefits when the imposition would “jeopardize the viability of the business.”
The Sick Leave Act does not specify any restrictions on how long the employee must have been employed by the employer in order to receive the paid sick time. Thus, the full allotment of paid sick time must be available for immediate use. Employers cannot require employees to use other paid leave prior to using this paid sick leave. Full time employees are entitled to 80 hours of such leave and part time employees are entitled to time equal to the number of hours they work on average over a two-week period.
Under the Sick Leave Act, the sick leave benefits will be paid at the employee’s regular rate (a maximum of $511 per day and $5,110 in the aggregate) for conditions 1-3 listed above. For conditions 4-6 listed above, the sick leave will be paid at two-thirds the employee’s regular rate (a maximum of $200 per day and $2,000 in the aggregate). If an employee receives pay from their employer, such as regular wages, sick pay, other paid time off or unemployment compensation, these do not count as leave days for purposes of this benefit. This paid sick leave is in addition to any already offered. This provision operates in coordination with other relevant benefit and leave programs. This means that existing rights or benefit rights are protected, including those under any federal, state or local law and those under a collective bargaining agreement or existing employer policy.
The leave does not carry over from one year to the next and paid sick time not used at the time of an employee’s termination, resignation, or retirement does not need to be paid out to the employee. Employers cannot discharge, discipline, or discriminate against any employee that takes leave in accordance with this Sick Leave Act; to do so is in violation of the FLSA. For those employees that already provide sick leave covering COVID-19 absences described in the bill, this existing sick leave fulfills the Sick Leave Act’s mandate.
The Families First Act provides private sector employers with a refundable tax credit equal to 100% of the qualified sick leave wages they pay with respect to each calendar quarter. However, this section does not apply to public employers. The Families First Act contains a “Special Rule” that states “this credit shall not apply to the Government of the United States, the government of any State or political subdivision thereof, or any agency or instrumentality of any of the foregoing.”
Use of FMLA leave prior to enactment of the Families First Act:
The Department of Labor (“DOL”) has issued clarification on several issues concerning employees who already have used some or all their leave under the FMLA prior to the enactment of this new law. If the employer was covered by FMLA prior to April 1, 2020, employee eligibility for leave under the Expansion Act depends on how much FMLA leave the employee already took during the 12-month period for FMLA leave. The 12-month period is determined by the employer. Employees may take a total of 12 weeks for FMLA or expanded family and medical leave reasons during a 12-month period. During the 12-month period, if an employee has taken some, but not all, of the 12 weeks of leave under FMLA, they may take the remaining leave available. However, if the employee has already taken 12 weeks of FMLA during the 12-month period, they may not take additional leave under the Expansion Act.
Use of leave under the Families First Act and the need to use regular FMLA leave later:
The DOL also has issued guidance on those employees that take this emergency FMLA leave during the public health emergency of COVID-19 but then may need to use regular FMLA leave at a later date. As stated above, an employee may take a total of 12 weeks of leave during a 12-month period under the FMLA, including the Expansion Act. If an employee takes some, but not all the 12 weeks by December 31, 2020, the employee may take the remaining portion of FMLA leave for a serious medical condition, as long as the total time does not exceed 12 weeks during the 12-month period. It is important to note that expanded family and medical leave under the Expansion Act is only available until December 31, 2020 and all leave taken after that is considered FMLA leave.
This differs from leave taken under the Sick Leave Act. An employee is entitled to paid sick leave regardless of how much leave they have taken under the FMLA. Paid sick leave is not a form of FMLA leave and does not count towards the 12 weeks in the 12-month period. However, if an employee takes sick leave simultaneously with the first 10 days of the Expansion Act leave, which may be unpaid, then those two weeks do count towards the 12 weeks in the 12-month period.
Employees that are eligible for pre-existing FMLA leave who may need to take the leave in August 2020 because of a surgery may do so and would be entitled to take up to eight weeks of FMLA leave.
Both the Expansion Act and the Sick Leave Act will have an immediate impact on public employers. However, the DOL has issued a bulletin stating that they will not bring enforcement actions against employers for violations of the Families First Act until after April 17, 2020 provided that the employer has made reasonable, good faith efforts to comply. Please check back regularly as additional regulations and clarifications are likely to be issued in the upcoming days and weeks.
Poster Notifying Employees about the Families First Act
The U.S. Department of Labor’s Wage and Hour Division has prepared a new poster (WH 1422) which addresses employees’ expanded FMLA rights and paid sick leave rights, pursuant to the Families First Act, outlined above. The poster must be placed in a conspicuous place in a school district’s buildings. A district may satisfy this requirement by emailing or direct mailing the poster to employees, or posting it on an employee information internal or external website. The poster is not required to posted in multiple languages, and districts are not required to share the poster with recently laid-off employees. The poster is available for free from the Department of Labor’s website : https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf