Understanding the Emergency Paid Sick Leave and Expanded FMLA Leave During COVID-19

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By Marina A. Galatro, PHRca, SPHR, SHRM-CP, Executive HR Consultant, HR Services

The Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees, and on all federal and state employers, to provide emergency paid sick leave and expanded paid FMLA leave to employees who need leave for reasons connected to COVID-19.

How Much Time Off is Required?

Paid Sick Leave

Under the FFCRA, eligible employers must provide 10 days of emergency paid sick leave (EPSL) related to COVID-19. Full-time employees must be provided with up to 10 days (80 hours) of paid sick leave. Part-time workers are generally entitled to the number of hours they work on average over a two-week period.

An employee may request paid sick leave at the employee’s full regular wage for each day taken for:

  • the employee’s own illness, or
  • the need to self-quarantine due to federal, state or local quarantine or isolation order, or
  • self-quarantine advised by a healthcare provider, or
  • the employee seeking a medical diagnosis.

If an employee needs leave to care for someone else due to a quarantine or isolation order, whether state, local or advised by a healthcare provider, or needs to care for a child due to school or child care provider closure or unavailability due to COVID-19, the employee is entitled to two-thirds of the employee’s wages.

Family and Medical Leave

The FFCRA also includes 12 weeks of job-protected expanded Family and Medical Leave Act (FMLA) leave (EFML) of which the first 10 days are unpaid. During the first 10 days of unpaid leave EFML, an employee may request to use EPSL (or any other paid leave available from the employer). For EFML, the employer must pay two-thirds of the employee’s regular wage.

The only qualifying reason for this leave is if the employee is unable to work or telework because the employee must care for a child if, due to a declared public health emergency related to COVID-19:

(1) the child’s school or place of care has been closed due, or

(2) the child’s care provider, whether a paid or unpaid provider, is unavailable due to reasons related to COVID-19.

To be eligible for the EFML, an employee must have been employed for at least 30 days.

Both the FFCRA’s paid leave provisions apply to leave taken between April 1, 2020, and December 31, 2020 in which eligible employers will receive a tax credit equal to 100% of the money spent on the EPSL and EFML mandated under the law. Note, regardless of an employee’s salary, the law limits the amount of leave payments the employer must make, so that such payments will be equal to the tax credit the employer will receive in return. More information on the tax credit provisions can be found here.

What if I Already Provide Paid Leave?

Both the emergency paid sick leave and the expanded FMLA leave is an addition to what is already provided by an employer or required by federal, state or local law. Many existing state and local paid sick leave laws have modified rules, including usage reasons, related to COVID-19. Continue to check your state and/or local paid sick leave laws for updates.

Employers may not require employees use provided or accrued paid vacation, personal, medical, or sick leave before EPSL or EFML. If an employer agrees, an employee may request to use preexisting leave entitlements to supplement lost wages in coordination with the entitled paid leave, up to the employee’s normal earnings. However, employers are not entitled to a tax credit for any paid sick leave that is not required to be paid or exceeds the limits set forth under the FFCRA.

Final Thoughts

Employers continue to have questions on the FFCRA. Questions around the law itself, how it interplays with other time off benefits, with state disability or paid family leave insurance programs, with shelter-in-place orders, what are recordkeeping requirements, and more. The situation we are facing is fluid and it is important for employers to continue to monitor rules, even temporary ones issued by the Department of Labor.

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