COVID-19 Legal FAQ Update – Expansion of Paid Sick and Childcare Leave

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These FAQs focus on the expansion of paid sick and childcare leave under the Families First Coronavirus Response Act (“FFCRA”), which took effect on April 1, 2020 and expires on December 31, 2020. The FFCRA established two separate and temporary paid leave laws, which also run from April 1st through December 31st—the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). These laws provide emergency paid sick leave and some partially paid parental leave protections to eligible employees who need to provide care to their children because of school and childcare closures.

Questions Regarding the Emergency Paid Sick Leave Act

1. Are there any additional paid sick days available for those dealing with the ramifications of COVID-19? Yes. The EPSLA requires school district employers (among many others) to provide up to 10 additional days of paid sick leave if the employee is unable to work (or telework) for a variety of reasons connected to COVID-19:

a) The employee is subject to a federal, state or local quarantine or isolation order related to coronavirus.
b) The employee has been advised by a health care provider to self-quarantine due to concerns related to coronavirus.
c) The employee is experiencing coronavirus symptoms and seeking a medical diagnosis.
d) The employee is caring for an individual who is subject to a federal, state or local quarantine or isolation order related to coronavirus or someone who has been advised by a health care provider to self-quarantine due to concerns related to coronavirus. (Note: There does not appear to be any particular relationship requirement to this “caring for” provision as there is with traditional FMLA leave)
e) The employee is caring for a son or daughter if a school or place of care has closed due to coronavirus, or the childcare provider of the son or daughter is unavailable due to coronavirus. (Note: “Son or daughter,” as under the FMLA, includes a biological, foster or adopted child, stepchild, child of a domestic partner, legal ward or the child of a person standing in loco parentis, [meaning one who is acting and intending to act as a parent, with no requirement of a legal or biological relationship], under 18 years of age)
f) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Labor and Secretary of the Treasury.

2. Who is eligible to receive these additional benefits? Eligible employees include virtually all public employees—with the exception of emergency responders if their employers exempt them—including all public school employees. While there are employer size exemptions that apply to private-sector employers, these size exemptions do not apply to public employers.

3. Do I have to be a full-time employee to access these additional days? No. The law provides for up to 10 days of paid sick leave for full-time workers and two weeks of pro-rata paid sick leave commensurate with hours worked for part-time employees. It applies to all employees (as defined under the Fair Labor Standards Act), regardless of the length of employment, including seasonal and temporary employees.

4. When are these days available? The law went into effect April 1, 2020, and the days are available immediately.

5. How much additional paid leave can I receive? Full-time employees are entitled to 80 hours of paid sick time (the equivalent of 10 eight-hour days), and part-time employees are entitled to the number of hours they ordinarily work on average over a two-week period. For part-time employees with a variable schedule, the leave is calculated based on the average number of hours the employee was scheduled per day over the previous six-month period.

6. If I am a part-time employee, do I get 2 weeks of paid leave or a full 80 hours? Part-time employees get an equivalent of their hours in a two-week period, not the full 80 hours.

7. Are there any limits on the value of these sick days? Yes. For leave that is related to the employee’s own quarantine or illness—(a)-(c) in Question 1 above—the compensation is the employee’s full rate of pay, up to a maximum of $511 per day and $5,110 total. For leave related to caring for another individual—(d)-(f) in Question 1 above—compensation is at 2/3 of the employee’s regular pay, with a cap of $200 per day and $2,000 total.

8. If I make more than $300 per day, do I get 2/3 of my wages or are they capped at $200? The $200 cap is firm, which means many employees may receive less than 2/3 of their wages under this leave.

9. Who pays for the leave? Individual school districts. Although private-sector employers are reimbursed for this leave through tax credits, public employers are currently not covered by that reimbursement. It is possible future laws will address that, but for now there is only a small federal subsidy in that these days are not subject to FICA.

10. Do I have to exhaust my existing sick/personal/PTO leave before using these additional days? No. This emergency paid sick time may be used prior to any existing paid leave. Employers are prohibited from requiring employees to use other paid leave first, and may not modify their existing paid leave policies to avoid being subject to this requirement.

11. May employees use existing leave to supplement the 2/3 benefit? Yes. Because nothing in this law diminishes other rights or benefits under existing collective bargaining agreements or employer policies, employees should be permitted to supplement their benefits.

12. Do I need to give my employer notice that I am taking the leave? Yes. After the first work day in which an employee receives emergency paid sick leave, the employer may require the employee to follow reasonable notice procedures. 13. How do I request the leave? Because this is a brand new law, our advice is to specifically request that your employer deduct your qualifying leave days from the “10 paid leave days under the EPSLA” before using other accrued leave. This may need to be done separate and apart from an electronic leave request system, which likely has not been updated to reflect an option for leave under the EPSLA. The employer may also ask you to provide specific proof that you meet one of the qualifying categories. This is generally a reasonable request, and in the event these days become reimbursable by the government, the employer may need to prove the employee qualified for them.

13. Do I need to find my own substitute? No. Employers cannot require, as a condition of providing emergency paid sick leave that an employee be involved in searching for or finding a replacement worker.

14. Is my employer permitted to lay me off or otherwise retaliate against me for requesting this leave? No. Employees are protected from retaliation (including job loss, discipline and discrimination) for using emergency paid sick leave or filing a complaint.

15. If I don’t need this leave right now, can I bank these days to use in the future? No. Emergency paid sick leave does not carry over from one year to the next, and is not
paid out at the termination of employment.

16. Can I use this leave intermittently? It depends. If you are using the leave because you are sick or caring for someone who is sick, the government does not want you coming in to work. However, if you are able to telework on some days and not others, this would be a reasonable use of intermittent leave, or if your employer has you working onsite some days and at home other days, you may need to use intermittent leave to be able to stay home.

17. I’m already out on paid sick leave, am I eligible for the additional 10 days? Maybe. Provided you were still on the payroll, you should be eligible for the additional days, but you need to also meet the other criteria for receiving those days.

Questions Regarding the Emergency Family and Medical Leave Expansion Act

18. Are school districts required to pay educators who need to stay home with their children if the educator is unable to work/telework? Yes. The FFCRA also created the federal Emergency Family and Medical Leave Expansion Act to provide paid leave for childcare needs for up to 12 weeks (adding 10 weeks of parenting leave to the two weeks of paid sick leave granted above). This public health emergency leave is only available to employees who are unable to work (or telework) due to a need for leave to care for a child under the age of 18 if the school or place of care has been closed, or the child’s child care provider is unavailable, due to COVID-19.

19. Must the employee meet the same FMLA requirements in order to access these benefits? No. The only requirement is that the employee was employed for at least 30 days prior to accessing this leave (as opposed to the 12-month employment period for FMLA). There is similarly no requirement that the employee has worked essentially full time (1,250 hours). Part-time employees are eligible, but they do receive pro-rated benefits.

20. Do I receive my full wages during this parenting leave? No. The additional 10 weeks are also paid at an amount not less than 2/3 of the employee’s regular rate of pay, based on the number of hours the employee would otherwise normally be scheduled to work, capped at $200 per day and $10,000 in the aggregate. For part-time workers, pay is equal to the average number of hours per day the employee was scheduled to work over the previous six-month period. During the first 10 days designated as unpaid under the EFMLEA, the employee may elect to substitute any accrued vacation, personal or sick leave (including emergency paid sick leave provided above). The employer may allow, but not require, such substitution of paid leave.

21. Can I use accumulated leave to supplement the partially paid leave? Yes. You can use available leave that would be accessible for parenting leave (vacation, PTO, personal leave) to supplement the pay provided under the EFMLEA. Employers may in fact, require you to do so and run your paid leave and EFMLEA leave concurrently (just like FMLA).

22. My district says teachers should have no need for this leave because this is just for staff scheduled to work onsite, is that correct? No. Provided the teacher meets the criteria of being unable to telework due to a need to care for their child(ren), they are eligible for this leave if they are unable to perform their work responsibilities due to a loss of childcare caused by COVID-19.

23. Can I access this leave if my child does not have an IEP? Yes. You can meet the criteria of having a need to care for your school-aged child who is participating in distance learning even if the child does not have an IEP.

24. Can I use this leave to be absent from work for the rest of the school year? Yes, provided the school year is completed within 12 weeks of your commencing leave and you have not already used some of your 12-week FMLA allotment. The new expanded law still limits the total number of weeks on leave to 12, so if you have already used some, your leave will end after you complete the twelfth week.

25. If an educator has childcare available at their school but needs to be home with their children to assist with distance learning, is the district required to provide this leave? Yes. Childcare availability is not the same as school being available. The need to provide assistance with distance learning is a sufficient qualifier (and one the district should respect as an educational institution). The EFMLEA applies to staying home with all children under 18 who cannot go to school, regardless of a demonstrated need for supervision. Recent temporary regulations have further explained that “children age 18 or older who are incapable of self-care” are covered under the expanded act, just like they are under FMLA.

JESPA members who have questions about any of the above FAQs, or who have questions about how these new laws might affect their employment, should contact the JESPA office.

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