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UPDATED: Expanded Paid Sick Leave and FMLA for COVID-19

Mar 23, 2020

Attorney Hugh CainExpanded Paid Sick Leave and FMLA for COVID-19 

BY HUGH CAIN | HOPKINS & HUEBNER, P.C. | DES MOINES OFFICE

(Updated April 3, 2020)

On Thursday, March 19, 2020, Congress passed 2 laws to extend paid leave to employees working for employers with less than 500 employees.  They went into effect on April 1 and expire on December 31, 2020.  The Emergency Paid Sick Leave Act (EPSLA) provides for 80 hours of paid sick leave.  The Emergency Family and Medical Leave Expansion Act (EFMLA) provides for paid FMLA in certain circumstances.  The intent is for both provisions to work together to provide for some paid leave up to 12 weeks. 
Paid Sick Leave
Emergency Paid Sick Leave Act (EPSLA). This paid sick leave is in addition to any current leave that you are providing now.  You cannot make the employee take the currently available employer provided leave first.  It applies to any employee even if they just started yesterday.  There are 6 conditions when  this law applies:
  • The employee is subject to quarantine order;
  • A health care provider has advised the employee to self-quarantine;
  • The employee experiences symptoms of COVID-19 and is seeking medical diagnosis;
  • The employee is caring for someone who has been advised or ordered to quarantine;
  • The employee is caring for son-daughter whose school has closed or childcare provider has become unavailable due to COVID-19;
  • The employee is experiencing other substantially similar condition specified by Secretary of Health and Human Services.  
Close-up photo of calculator and pen on deskThe dollar amount of paid sick time depends upon whether you are taking the leave for conditions 1-3 or 4-6.  If conditions 1-3 apply, then you pay sick leave at the employee’s regular rate, but it is capped at $511/day or $5110 aggregate.  If conditions 4-6 apply, then the employer pays sick time at a rate of 2/3s of regular rate pay with a cap of $200/day or $2000 aggregate. In conditions 1-3, if the employee earns $10 an hour and works 8 hours per day, then you pay $80 per day. In conditions 1-3, if the employee makes $100 an hour and works 8 hour days, then the caps come into play - the employee is capped at $511 per day. If the employee takes leave for conditions 4-6 and she makes $10 an hour and works 8 hours a day, then the amount of sick leave is $53.29 (2/3s of $80).   If conditions 4-6 apply and the employee makes $100 an hour for 8 hours, then the cap of $200 a day applies.  There are provisions for part-time employees at a proportion to full time employment.
FMLA Expansion
Expanded FMLA (EFMLA).  Unlike the prior version of the FMLA, this applies to all employers with under 500 employees, not simply those with more than 50 employees.  An employee can take 12 weeks of FMLA leave due to COVID-19 emergency for these reasons:
  • Care for son or daughter under 18 whose school or care place closed;
  • Childcare provider is unavailable. 
These are the only reasons where paid leave comes into play.
This leave is paid, again unlike the prior version of the FMLA. The employer pays as follows: 
  • For the first 10 days employer pays $0. (But remember, if the employee qualifies for expanded sick leave, you pay 80 hours of sick leave during these 2 weeks.)
  • Thereafter, employer pays not less than 2/3s of the employee’s regular rate and the number of hours normally scheduled to work but capped at $200 a day or $10,000 in aggregate. 
Any employee who has worked for you for 30 days is eligible for this FMLA expansion.
The law took effect on April 1, 2020.  It expires on Dec. 31, 2020.  There are tax credits which assist the employer to pay for these benefits. There are penalties for non-compliance and for retaliation.  Please use the link provided below to download the updated Families First Coronavirus Response Act (FFCRA) poster.
 
Close-up photo of police lightsOn April 1, 2020, the Department of Labor issued regulations, including who are “health care providers” and “emergency responders” who can be excluded from coverage from EPSLA and EFMLA.
A “healthcare provider” is anyone employed at any doctor’s office, hospital, healthcare center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department  or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution employer or entity.
An “emergency responder” is military or national guard, law enforcement officers, correctional institution personnel,  fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills need to provide aid in a declared emergency as well as individuals who work for such facilities employing these  individuals and whose work is necessary to maintain the operation of the facility.
The Department also issued regulations on how private businesses with under 50 employees, including non-profit and religious organizations, have an opt-out provision.  It requires an authorized officer of the business to make certain determinations concerning the finances or staffing of the organization.
Also, the regulations require that an employer have proof of the reason that an employee qualifies for the new federal benefits.  For instance, an employee would need to submit some evidence that a school or daycare is closed due to COVID-19 reasons.
 
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