Under the Family and Medical Leave Act (FMLA), certain qualified employees have long been entitled to up to twelve weeks of leave for reasons including the birth of a new baby or to care for themselves or a family member with a serious health condition. While the FMLA has provided much-needed relief and job protection for countless workers over the years, in reality the law is relatively limited; it provides only for unpaid time off, and applies only to people who have been employed for over a year, for employers with over fifty employees. Employee advocates have argued for greater employee sick and family leave protections, and it is likely that some form of mandatory paid leave will become the law of the land in coming years.
The COVID-19 Public Health Emergency has quickly crystallized the need for greater employee leave protections in the workplace. Suddenly, millions of workers have found themselves in need of intermittent or continuous time off from work, due to caregiver responsibilities or because of their own health conditions. In response, Congress passed the Families First Coronavirus Response Act (FFCRA), effective between April 1, 2020 and December 31, 2020. The FFCRA includes the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA), applicable to time taken off for COVID-19-related reasons.
The EPSLA provides that employers must provide up to eighty (80) hours of paid time off (over and above any preexisting state, federal, union, or company-provided paid leave) when an employee:
- Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- Has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
- Is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- Is caring for an individual who is either subject to a quarantine or isolation order related to COVID-19 or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
- Is caring for his or her child if the school or place of care of the child has been closed, or the childcare provider of such child is unavailable due to COVID-19 precautions; or
- Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Under the EFMLEA, employers must provide to up to twelve (12) weeks of paid time off if an employee is caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19-related reasons.
Importantly, the FFCRA applies to all individuals who have worked for at least 30 days and who are actively scheduled for work, and who work for any employers with fewer than 500 employees (although employers with fewer than 50 employees can apply for a small business exemption from the FFCRA). Employers are prohibited from firing, disciplining, or terminating employees because they exercise their rights under the FFCRA, and must generally reinstate employees to their former positions at the end of FFCRA leave.
Requesting Paid Family and Medical Leave and Emergency Paid Sick Leave – In connection with a request for leave employees must provide, either orally or in writing: their name, the dates they are seeking leave, the (qualifying) reason for the leave, and statement that they are unable to work due to that qualifying reason. If the leave arises due to a government-issued quarantine or isolation order or the recommendation of a health care provider, you should also provide the name of the issuing governmental entity or health care provider. If the requested leave is because of the closure of a school or childcare provider, the employee must also provide: their child’s name, the name of the school or facility that has closed; and a statement that no other “suitable person” is available to provide care for the child.
These new requirements under the FFCRA can be confusing, and there are several factors that will contribute to the analysis of whether and to what extent employees will be entitled to time off from work with pay under the new emergency laws. Use of paid time off under the FFCRA may also be impacted by, or later affect, an employee’s ability to use “regular” FMLA or other leave benefits.
Caffarelli & Associates Ltd. is experienced in FMLA law, and understands the interplay between preexisting leave law and the FFCRA. If you have questions about your right to leave, or believe that your employer has failed to provide you with either unpaid or paid leave under the law, please contact our office to set up a telephone consultation with one of our lawyers.
NOTE: This article was last updated on April 20, 2020. Leave protections may rapidly evolve, and we will update our website with new information.