Expanded Paid Sick Leave and Family Leave During COVID-19

Under the Families First Coronavirus Response Act (FFCRA), private employers with 500 or fewer employees are required to provide employees who are impacted by COVID-19 with certain benefits. The law covers the nine months from April 1, 2020 through December 31, 2020. Note that employers with fewer than 50 employees may be able to seek an exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of their business.

Two of the main provisions, detailed below, fit together to offer qualifying employees a total of 12 weeks of paid leave, during which they potentially will receive the majority of their usual compensation despite not being able to work. The first provision offers 2 weeks of immediate paid sick leave and the second provision expands existing federal law to provide paid leave for an additional 10 weeks.

I. Emergency Paid Leave

The first major aspect of FFCRA is expanded paid sick leave for employees who (1) are sick, (2) have to care for someone who is sick, or (3) are unable to work because they have dependents that cannot attend school or daycare.

Employee Eligibility:

Employees are entitled to this additional emergency paid leave if they fall into at least one of the following 6 categories involving Coronavirus, which prevents them from being able to work:

1. Employee is required to be in quarantine or to isolate by a federal, state, or local order;
2. Employee has been advised by a health care provider to self-quarantine;
3. Employee is experiencing Coronavirus symptoms and is seeking a medical diagnosis;
4. Employee is caring for another individual, who is subject to quarantine or isolation order;
5. Employee is caring for a dependent (under the age of 18) whose school or childcare/daycare has been closed due to Coronavirus; or
6. Employee is experiencing another substantially similar condition, as specified by the Secretary of Health and Human Services (this is a catchall backstop to leave flexibility).
Benefits to be Paid

This part of the FFCRA is a short-term benefit:

• Up to 80 hours of paid sick leave (two weeks’ pay, prorated for part-time employees)
• If the employee qualifies for one of the first three reasons – related to their own health – they would be entitled to the greater of the applicable minimum wage or their regular rate of pay, subject to a cap of $511 per day and $5,100 in total
• If the employee qualifies for one of the last three reasons – including based on the need to care for someone else – the amount is reduced to the greater of minimum wage or 2/3 of their regular rate of pay, subject to a cap of $200 per day and $2,000 in total
• Note that employees may not be required to first use accrued vacation, paid time off (PTO), or other sick leave before using the FFCRA emergency paid leave to receive their wages / salary

II. Family Medical Leave Expansion

The second major aspect of the FFCRA is expanded rights under the Family Medical Leave Act (FMLA), including a new paid leave component (normally FMLA provides for unpaid, protected leave).

Employee Eligibility:

• Employee is entitled to this paid leave if they also have been employed for at least 30 calendar days before beginning their leave (not the full 12 months of employment, as under FMLA)
• Employee must be caring for a dependent (under the age of 18) whose school or childcare/daycare has been closed due to Coronavirus
• Note that employers of health care providers or emergency responders have exemptions

Benefits to be Paid:

This part of the FFCRA is a medium-term benefit, picking up where the first part providing Emergency Paid Leave ends after 2 weeks:

• The total FMLA leave remains 12 weeks (this leave may have been used up already based on an employee’s prior FMLA leave use; the expansion does not entitle employees to more total time)
• Weeks 1 and 2 of leave are unpaid, but the employee may be paid under the two weeks of Emergency Paid Leave, discussed above, or use accrued paid sick leave, vacation, or PTO
• The remaining 10 weeks (weeks 3 through 12) are paid. As with the Emergency Paid Leave based on caring for a child (above), the compensation is limited to 2/3 of the regular rate of pay, subject to a cap of $200 per day, and no more than $10,000 total

Also note that these rights apply nationally in all states, under federal law. Depending on the state, there may be additional applicable laws. This post only presents basic information about federal provisions.

For example, in California, employees are allowed to use all of the paid sick leave that they receive under state law for paid leave due to Coronavirus, in addition to the new paid leave under federal law. Additionally, the Kin Care Law in California allows employees to use up to half their sick leave to care for an immediate family member that is ill.

Stay tuned for new developments! There are changes and new provisions introduced on a regular basis. This is a very dynamic area of law, as these circumstances are new and evolving.

By Angela Reddock-Wright, Esq., Employment Mediator, Arbitrator & Workplace Investigator in Los Angeles

DISCLAIMER:
Nothing in this blog, written materials or otherwise is intended as legal advice by the Reddock Law Group, Managing Partner Angela Reddock-Wright, or any person associated with the firm. This blog is intended for educational purposes only. The Reddock Law Group does not represent clients in legal matters. We are a full-service mediation, neutral, investigations and alternative dispute resolution firm. For legal advice, please contact a licensed attorney with experience in employment law.