The U.S. government has acted swiftly in responding to the COVID-19 pandemic by enacting laws that provide certainty to employers and workers about how to handle absences necessitated by the coronavirus. 

Of direct interest to employers and the business community, this new law expands family and medical leave as well as guaranteed paid sick leave for employees.

The Families First Coronavirus Response Act contains two provisions that address employee absences:

• The Emergency Family and Medical Leave Expansion Act (“EFMLEA”); and
• The Emergency Paid Sick Leave Act (“EPSLA”).

The following is a summary of the major employment issues that employers and businesses need to know:

Emergency Family and Medical Leave Expansion Act

The EFMLEA provides expanded coverage under the Family and Medical Leave Act (“FMLA”) for situations related to the coronavirus. This law becomes effective on April 2, 2020 and will sunset on December 31, 2020:

• The EFMLEA applies to all employers with fewer than 500 employees. The concentration of 50 or more employees within a 75-mile radius (applicable under other provisions of the FMLA) does not apply to the EFMLEA.

• Employees are eligible for relief under the EFMLEA after working for the employer for 30 calendar days.  The eligibility requirements set forth in the FMLA, where employees must have worked for 12 months and 1,250 hours in the immediately preceding 12-month period prior to taking leave, do not apply.

• Leave is available when an employee is unable to work, which includes inability to work remotely, due to the need to care for a child under the age of 18.

• The initial 10 days of EFMLEA leave is unpaid. After 10 days, the remainder of the leave is paid.

• If an employee qualifies for both EFMLEA and Emergency Paid Sick Leave (see below), the employee may use the Emergency Paid Sick Leave concurrently with the first 10 days of EFMLEA leave that would normally be unpaid.

• After the 10-day unpaid leave period expires, the employer must pay the employee two-thirds of his or her regular rate under the Fair Labor Standards Act, multiplied by the number of hours the employee would normally work. If the employee’s hours have historically fluctuated, the employer should look at the prior six-month period prior to the leave to calculate the average number of hours worked per week.

• Paid leave under the EFMLEA is a maximum of $200 per day and a maximum of $10,000 for the remainder of the leave. After the $10,000 maximum is reached, the remaining period of leave, up to 12 weeks, is unpaid.

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act (“EPSLA”) also becomes effective on April 2, 2020 and will remain in place until December 31, 2020.  Below is a summary of the EPSLA’s important provisions that employers should know:

• The EPSLA applies to all employers that have fewer than 500 employees.

• All employees (full-time and part-time) are eligible for leave, regardless of his or her duration of employment.

• An employee qualifies for leave when the employee cannot work for any of the following reasons:
  • The employee is subject to a federal, state, or local quarantine or isolation order;
  • The employee has been advised by a health care provider to self-quarantine;
  • The employee is experiencing symptoms of coronavirus and is seeking a medical diagnosis;
  • The employee is caring for a person subject to a federal, state, or local quarantine or isolation order or who has been advised by a health care provider to self-quarantine;
  • The employee is caring for a son or daughter of the employee whose school or day care is closed; or
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, the Secretary of the Treasury, and/or the Secretary of Labor.

• Full-time employees are entitled to 80 hours of paid leave. Part-time employees are entitled to be paid for the number of hours per day they worked on average over the prior two-week period.

• Leave taken for the following reasons will be paid at the employee’s regular rate of pay subject to a limit of $511 per day and $5,110 total:
  • The employee is subject to a federal, state, or local quarantine or isolation order;
  • The employee has been advised by a health care provider to self-quarantine; or
  • The employee is experiencing symptoms of coronavirus and is seeking a medical diagnosis.

• Leave taken for the following reasons will be paid at two-thirds of the employee’s regular rate of pay subject to a limit of $200 per day and $2,000 total:
  • The employee is caring for a person who is subject to a federal, state, or local quarantine or isolation order or who has been advised by a health care provider to self-quarantine;
  • The employee is caring for a son or daughter of the employee whose school or day care is closed; or
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, the Secretary of the Treasury, and/or the Secretary of Labor.

• If an employee qualifies for both EFMLEA and EPSLA, the employee may use the EPSLA leave concurrently with the EFMLEA leave, which would normally be unpaid, so that the employee is paid during the first 10 days of leave.

• Employers cannot require that employees take leave under existing policies first. Employees have the option to take Emergency Paid Sick Leave before any other leave provided by the employer if they prefer.

The U.S. Department of Labor will publish EFMLEA and EPSLA posters within the next few weeks that employers must post in the workplace.

Employers should also issue a policy to employees notifying them of the availability of EFMLEA and EPSLA leaves.

If you have questions or need assistance with the impact of these new laws on your business, please contact the author.

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Matthew M. Ries is a business and employment lawyer with Harrington, Hoppe & Mitchell. He can be reached at (330) 392-1541 or at mries@hhmlaw.com.