On March 14, 2020, at 12:51 am, in response to the COVID-19 pandemic, and in an effort to reduce the impact of the virus on American families, the House of Representative passed H.R. 6201, titled the Families First Coronavirus Response Act (the Act). The bill will now move to the Senate, where it will be debated and voted upon. If the bill passes in the Senate, President Trump will likely sign the bill into law, as he released a statement on March 14, announcing his full support of the bill.
If signed into law, the Act would, among other things, amend the Family and Medical Family Leave Act (FMLA) by providing FMLA Public Health Emergency Leave and Emergency Paid Sick Leave to employees for certain coronavirus, or COVID-19, related reasons. FMLA Public Health Emergency Leave and Emergency Paid Sick Leave become effective within 15 days of the Act’s passage (it is likely to be more quickly than 15 days) and the leave entitlement remains in effect until December 31, 2020, unless otherwise extended by law. The benefits granted by the Act appear to apply to employees prospectively upon the effective day of the Act.
Liebert Cassidy Whitmore is monitoring this bill closely. Please check http://lcw.wpxnew.riefmedia.com/responding-to-COVID-19 for updates on this and other evolving matters related to COVID-19.
In the meantime, here is what California employers need to know if the Act is signed into law in its current state:
FMLA Public Health Emergency Leave
Who is eligible to take FMLA Public Health Emergency Leave?
Employees of private sector employers with fewer than 500 employees and employees of all government employers, who have been employed by the employer for at least 30 calendar days are eligible for FMLA Public Health Emergency Leave. The eligibility for FMLA Public Health Emergency Leave is different from the eligibility requirements for regular FMLA leave, which requires an employee to have been employed by the employer for at least 12 months and have worked 1250 hours during that period of time.
There is a very narrow possible exception from the requirement to provide FMLA Public Health Emergency Leave for small businesses with less than 50 employees. The Act gives the Secretary of Labor the authority to issue regulations for good cause to exempt small businesses with fewer than 50 employees from the FMLA Public Health Emergency Leave requirement “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” Therefore, the Act itself does not exempt these small businesses at this time.
For what reasons may an employee take FMLA Public Health Emergency Leave?
An employee may take FMLA Public Health Emergency Leave for the following reasons:
- To comply with a recommendation or order by a public official having jurisdiction or a health care provider on the basis that:
- The physical presence of the employee on the job would jeopardize the health of others because of an exposure of the employee to coronavirus or exhibition of symptoms of coronavirus by the employee; AND
- The employee is unable to both perform the functions of his/her position and comply with such recommendation or order.
- E.g., the employee’s position or the available resources do not make telecommuting feasible under the circumstances.
- To care for the employee’s family member who has been determined by a public official having jurisdiction or a health care provider that the presence of the family member in the community would jeopardize the health of other individuals in the community because of an exposure of the family member to coronavirus or exhibition of symptoms of coronavirus by the family member.
- To care for the employee’s son or daughter under 18 years of age if their school or place of care has been closed or their childcare provider is unavailable due to a public health emergency.
Who is a “family member” for purposes of FMLA Public Health Emergency Leave?
The term “family member” means any of the following:
- A parent of the employee
- A spouse of the employee
- A son or daughter who is under 18 year of age of the employee
- An individual who is a pregnant woman, senior citizen, individual with a disability, or has access or functional needs and who is:
- A son or daughter of the employee;
- A “next of kin” of the employee or a person for whom the employee is “next of kin”; OR
- A grandparent or grandchild of the employee.
Who is a “parent” for purposes of FMLA Public Health Emergency Leave?
For the purposes of FMLA Public Health Emergency Leave, “Parent” means the following:
- Biological, foster, or adoptive parent of the employee
- Stepparent of the employee
- Parent-in-law of the employee
- Parent of a domestic partner of the employee
- A legal guardian or other person who stood in loco parentis to an employee when the employee was a child
How many days of FMLA Public Health Emergency Leave is an employee eligible to take and is the leave paid or unpaid?
Employees have the right take up to 12 weeks of job-protected Public Health Emergency Leave. The initial 14 days of leave may consist of unpaid leave. However, an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave during the initial 14 days of leave. The employee may also elect to substitute the two weeks of unpaid leave with the paid sick leave provided under the Emergency Paid Sick Leave Act, as further explained below. However, an employer may not require an employee to substitute accrued leave during the initial 14 days of leave.
Then, from the fifteenth day of an employee’s Public Health Emergency Leave thereafter, the employer must provide paid leave in an amount not less than two-thirds of an employee’s “regular rate of pay” for the number of hours the employee would otherwise be normally scheduled to work during the leave time. If the employee’s schedule has varying hours from week to week, the hours used for this calculation would be a number equal to the average number of hours that the employee was scheduled per day over the six-month period ending on the date which the employee takes the Public Health Emergency Leave, including hours used by the employee for leave of any type. The Act appears to permit employees to supplement the two-thirds pay with their accrued leaves to achieve 100% of their regular rate of pay.
Are employees entitled to 12-weeks of FMLA Public Health Emergency Leave in addition to their existing 12-week leave entitlement under the FMLA?
Most likely, no. The Act appears to merely add another qualifying reason for an employee to take FMLA leave, i.e., for coronavirus-related reasons. Therefore, if an employee has already used all or a portion of his/her 12-week entitlement of FMLA leave for another qualifying reason, then the employee is only entitled to use the remaining balance of his/her 12-week FMLA entitlement for a qualifying coronavirus-related reason. Also, if the employee has already exhausted his/her 12-weeks of FMLA leave for another qualifying reason, he/she is not eligible to take any FMLA Public Health Emergency Leave. Similarly, if an employee exhausts his/her 12-weeks of FMLA leave as FMLA Public Health Emergency Leave, the employee will be unable to take additional FMLA leave until he/she becomes eligible again for FMLA leave.
This poses practical consequences for employees. For example, longstanding employees who have exhausted their FMLA leave for a serious health condition may be ineligible for FMLA Public Health Emergency Leave, though they would be eligible for the Emergency Paid Sick Leave explained below, while newly hired employees with 31 days of employment would be eligible for a full 12 weeks of FMLA leave. We will update our clients if additional clarification isissued regarding this matter.
What rights to reinstatement does an employee have after their FMLA Public Health Emergency Leave ends?
Employees have the same right to reinstatement as they would under the FMLA. The only exception is for employers with less than 25 employees who can satisfy the following conditions:
- The employee takes FMLA Public Health Emergency Leave;
- The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during a period of leave;
- The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced with equivalent employment benefits, pay and other terms and conditions of employment.
- If such reasonable efforts of the employer fail, the employer makes reasonable efforts during the “contact period” to contact the employee if an equivalent position becomes available.
The “Contact Period” is defined as the 1-year period beginning on the earlier of: (1) the date one which the qualifying need related to the public health emergency concludes; or (2) the date that is 12 weeks after the date on which the employee’s FMLA Public Health Emergency Leave commences.
Does FMLA Public Health Emergency Leave run concurrently with leave under the California Family Rights Act (CFRA)?
While it is not entirely clear at this time, whether FMLA Public Health Emergency Leave would run concurrently with leave under the CFRA, would most likely depend on the reason an employee takes the leave. For example, if the employee takes the FMLA Public Health Emergency Leave due to quarantine or to care for a child because of a school closure, it is unlikely the leave would run concurrently with CFRA leave because the leave is not taken for a CFRA qualifying reason. Also, if the FMLA Public Health Emergency Leave is taken to care for a family member not covered under the CFRA, such as a grandparent, it is also unlikely the leave would run concurrently with CFRA leave. Another consideration is whether the employee is eligible to take CFRA leave at the time he/she takes FMLA Public Health Emergency Leave. For example, an employee is not eligible for CFRA until he/she has been employed by the employer for 12 months and has worked 1,250 hours during that period of time, while an employee is eligible for FMLA Public Health Emergency Leave after 30 calendar days of employment.
Emergency Paid Sick Leave
What types of employers are required to provide Emergency Paid Sick Leave?
Private sector employers with fewer than 500 employees and any government or public agency employer with one or more employees are required to provide Emergency Paid Sick Leave.
Does an employee need to work for an employer for a certain period of time to become eligible for Emergency Paid Sick Leave?
No, an employee is eligible for Emergency Paid Sick Leave regardless of how long the employee has been employed by an employer.
Under what circumstances may an employee receive Emergency Paid Sick Leave and how much is the leave entitlement?
Employees are entitled to Emergency Paid Sick Leave at their regular rate of pay for the following reasons:
- To self-isolate because the employee is diagnosed with coronavirus
- To obtain a medical diagnosis or care if the employee is experiencing the symptoms of coronavirus; or
- To comply with a recommendation or order by a public official with jurisdiction or a health care provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of the exposure of the employee to coronavirus or exhibition of symptoms of coronavirus by the employee.
Employees are entitled to Emergency Paid Sick Leave at two-thirds of the employee’s regular rate of pay:
- To care for or assist a family member of the employee who is either:
a. Self-isolating because the family member has been diagnosed with coronavirus or is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care; or
b. Has been determined by a public official with jurisdiction or a health care provider that the presence of the family member in the community would jeopardize the health of other individuals in the community because of the exposure of the family member to the coronavirus or the exhibition of symptoms by the family member
2. To care for the child of the employee if the school or place of care has been closed or the childcare provider of the child is unavailable due to coronavirus.
The Act appears to permit employees to supplement the two-thirds pay with their accrued leaves to achieve 100% of their regular rate of pay.
Full time employees are entitled to 80 hours, and part-time employees are entitled to the typical number of hours that they work in a typical two-week period, of Emergency Paid Sick Leave. If a part-time employee’s schedule varies from week to week, the amount of the leave entitlement is a number equal to the average number of hours that the employee was scheduled per day over the preceding six-month period ending on the date on which the employee takes the paid sick time, including hours for which the employee took leave of any type.
Does Emergency Paid Sick Leave run concurrently with FMLA Public Health Emergency Leave?
Yes, if the employee has FMLA leave available, Emergency Paid Sick Leave would run concurrently with FMLA Public Health Emergency Leave. However, if an employee does not have any available FMLA leave, then he/she would only be able to take Emergency Paid Sick Leave and, therefore, the leaves would not run concurrently. Further, please note that Emergency Paid Sick Leave applies to all employees of a covered employer immediately and regardless of how long the employees have worked for the employer. Therefore, employees become eligible for Emergency Paid Sick Leave before they become eligible for FMLA Public Health Emergency Leave, which requires the employee to have first worked for at least 30 calendar days.
How does Emergency Paid Sick Leave interact with existing paid leave policies?
For employers who already provide paid sick leave or other paid leave that can be used for illness, this paid sick leave entitlement is in addition to those accrued paid leaves. An employer cannot change its existing paid leave accrual policies in response to the Act to avoid providing the additional Emergency Paid Sick Leave.
An employee may choose to first use this Emergency Paid Sick Leave for the coronavirus-related uses noted above. In addition, the Act suggests that because the first 14 days of FMLA Public Health Emergency Leave are by default “unpaid,” an employee can choose whether to use this Emergency Paid Sick Leave during that time or go unpaid.
However, an employer may not require an employee to use other paid leave provided by the employer before the employee uses this Emergency Paid Sick Leave for the coronavirus-related uses noted above.
Does Emergency Paid Sick Leave carry over from one year to the next?
No, any paid sick leave provided under this law does not carry over from one year to the next.
Do employers need to cash-out unused Emergency Paid Sick Leave at separation of employment?
No. There is no obligation to cash-out or provide an employee with any unused Emergency Paid Sick Leave at the time of separation of employment.
