KemLaw

(Revised as of 10:30 a.m. on 3/27/20 in red)

Emergency Family and Medical Leave Expansion Act

• Effective Date          April 1, 2020

This law does not state that it applies retroactively to employees (whether working or out on leave) prior to April 1, 2020.[2]

• Public Health Emergency

This Act applies to a public health emergency with respect to COVID-19 declared by a Federal, State or local authority.

• Reason for Emergency Leave

The only qualifying reason for the emergency leave is:

An employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.

An employee is “unable to work” if the employer has work for the employee and the employee is prevented from being able to perform work due to the qualifying reason.

If an employer and employee agree that the employee will work the normal number of hours bout outside that employee’s normally scheduled hours, the employee is still able to work and leave is not necessary.

• Employee Eligibility

For purposes of emergency leave only, an eligible employee is defined as one who has been employed by the employer for at least 30 calendar days. This applies to full-time, part-time, exempt, and non-exempt employees.

An employee who has been furloughed or laid off due to lack of work or closure or worksite is not entitled to emergency leave until and unless rehired before December 31, 2020.

• Covered Employers

For purposes of emergency leave only, a covered employer is defined as an entity with fewer than 500 employees. This applies to both public and private sector employers.[3]

• Employer Exemptions

U.S. DOL has been authorized to issue regulations to exempt from the requirements under this law: (1) small businesses with fewer than 50 employees when providing the leave would jeopardize the viability of the business as a going concern; and (2) certain health care providers and emergency care responders.

When the regulations will be issued is unknown.

An employer with fewer than 500 employees should presume it is covered until regulations are issued.

• Unpaid Leave for Initial 10 Days

The first 10 days of emergency leave are unpaid leave, but the employee may use any accrued PTO (accrued vacation leave, personal leave, or medical or sick leave during this time). The employer may not require the employee to use any such accrued PTO during this initial 10-day period.

• Paid Leave for Up to Remaining 10 Weeks

If employees remain eligible for emergency leave after the initial 10 unpaid days, they will be eligible for paid leave of up to 10 additional weeks.

The payment amounts are based on two thirds of the employee’s regular rate of pay times the number of hours the employee otherwise would normally be scheduled to work, up to the limit of $200 per day and $10,000 in the aggregate per employee.

The”regular rate” of pay used to calculate the paid leave is the average of the regular rate over a period of up to six months prior to the date on which leave is taken, or it employed less than six months, the average of the regular rate for each week worked to date. You can also compute this amount by adding all compensation that is part of the “regular rate” (which would include, as applicable, commissions, tips, piece rates) over either of those above periods and divide that sum by all hours actually worked in the same period.

• Intermittent Leave

An employee who is unable to work the employee’s normal schedule of hours through teleworking or working at the employee’s usual worksite because of the qualifying reason may take intermittent leave only if the employer and employee agree that the employee may take leave intermittently.

Intermittent leave while teleworking may be taken in any increment that is agreed upon by the employer and employee.

• Restoration to Position

Employees who have taken emergency leave must be restored to their original or equivalent positions.

Employers with fewer than 25 employees who meet the following conditions may be able to deny job restoration:

1. The position held by the employee when the leave began no longer exists due to economic conditions/changes in operating conditions that affect employment and were caused by the public health emergency;
2. The employer has made reasonable efforts to restore the employee to an equivalent position (with equivalent benefits, pay, and other terms and conditions); and
3. The employer makes reasonable efforts during the earlier of the one-year period (i) after the public emergency ends; or (ii) 12 weeks after the date the employee’s leave began to restore the employee to an equivalent position.

• Verification of Need for Emergency Leave

According to DOL guidelines, employers must require that employees provide appropriate documentation in support of the reason for leave just as they would for conventional FMLA leave requests. This requirement of documentation applies to both the two weeks of unpaid leave and the 10 weeks of paid leave. 

While employers may have employees complete existing FMLA leave request forms, the information on the form should include the following information:

1. Employee’s name;
2. Leave is needed to care for a son or daughter under 18 years of age because the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to the COVID-19 public health emergency
3. Statement that the employee is unable to work, including telework; and
4. The date(s) for which leave is requested.

The employee must also provide documentation verifying the leave, such as a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.

Employers should retain the documentation to support its claim for a tax credit.

• Employers Otherwise Covered by FMLA

Those employers who are otherwise covered by state and/or federal FMLA remain obligated to provide such leave in accordance with existing rights and obligations under those leave laws. Under FMLA prior to the enactment of this law, the maximum amounts of FMLA leave do not afford eligible employees the ability to take more leave (e.g., more than 12 weeks in a 12-month period under federal law and more than 16 weeks in a 24-month period under Connecticut law) if they have multiple qualifying reasons.

• Impact on Use of Other Paid Leave

Any employee eligible to take emergency leave and any type of paid leave that is already provided by the employer may not simultaneously take both, unless the employer agrees to allow the employee to supplement the amount the employee receives from the paid emergency leave up to the employee’s normal earnings, with any employer provided leave. For example, if an employee is receiving ⅔ of their normal earnings from paid emergency leave and the employer permits, the employee may use his/her preexisting employer-provided paid leave to get the additional ⅓ of her/her normal earnings so that the employee receives his/her full normal earnings for each hour. 

An employer is not required to permit an employee to use existing paid leave to supplement the amount the employee received from emergency leave.

An employer may not claim, and will not receive tax credit, for any such supplemental amounts permitted.

Emergency Paid Sick Leave Act

• Effective Date.          April 1, 2020

This law does not state that it applies retroactively to employees currently on leave, but employees (whether working or out on leave) prior to April 1, 2020.[4]

• Reason for Paid Sick Leave

An employer must provide each employee paid sick leave if the employee is unable to work (or telework) due to a need for leave because:

1. The employee is under a federal, state or local quarantine order related to COVID-19;
2. The employee has been advised by a health care provider to self­ quarantine due to concerns related to COVID-19;
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. The employee is caring for an individual who is subject to a quarantine order or experiencing COVID-19 symptoms and seeking a medical diagnosis;
5. The employee is caring for a son or daughter if the school has been closed or the child care provider is unavailable due to COVID-19 precautions; or
6. The employee is experiencing any other substantially similar condition specified by the order of the U.S. Secretary of Health and Human Services.

An “individual” as used in section 4. above is not defined by the law.

An employee is “unable to work” if the employer has work for the employee and the employee is prevented from being able to perform work due to the qualifying reason.

If an employer and employee agree that the employee will work the normal number of hours but outside the employee’s normally scheduled hours, the employee is still able to work and leave is not necessary.

• Duration and Amount for Sick Leave

The duration of paid sick leave is 80 hours for full time employees or, for part­ time employees, a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.[5]

The amount of pay for sick leave is full pay up to $511 per day and $5,110 in the aggregate for employees who are taking leave for the reasons stated in 1., 2., and 3. above.

The amount of pay for sick leave is two-thirds of regular wages up to $200 per day and $2,000 in the aggregate for employees who are taking leave for the reasons stated in 4., 5., and 6. above.

The employer’s obligation to provide paid sick leave ceases upon termination of the need for paid sick leave, and there is no carry-over of this paid sick leave.

Upon separation, there is no right to payment for unused paid sick leave.

• Intermittent Leave

Teleworking

An employee who is unable to telework the employee’s normal schedule of hours due to one of the qualifying reasons may take intermittent leave only if the employer and employee agree that the employee may take leave intermittently while teleworking.

Intermittent leave while teleworking may be taken in any increment that is agreed to by the employer and employee.

Working in person at usual worksite

Paid sick leave must be taken in full-day increments and cannot be taken intermittently for the following reasons:

1. The employee is under federal, state or local quarantine order related to COVID-19;
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. The employee is experiencing symptoms fo COVID-19 and seeking a medical diagnosis;
4. The employee is caring for an individual who is subject to a quarantine order or experiencing COVID-19 symptoms and seeking a medical diagnosis;
5. The employee is experiencing any other substantially similar condition specified by the order of the U.S. Secretary of Health and Human Services.

If the employer and employee agree, an employee may take paid sick leave intermittently if the employee is taking the paid sick leave to care for a son or daughter whose school or place of care is closed or whose child care provider is unavailable because of COVID-19 related reasons.

• Employee Eligibility

Paid sick leave applies to all employees regardless of length of service or status (full-time, part-time, exempt, and non-exempt).

An employee who has been furloughed or laid off due to lack of work or closure of worksite is not entitled to emergency leave until and unless rehired before December 31, 2020.

• Covered Employers

Any private entity or individual or public agency that employs less than 500 employees is a covered employer. All public agencies are covered employers.

• Verification of Need for Paid Sick Leave

According to DOL guidelines, employers must require that employees provide appropriate documentation in support of the reason for leave.

The employee must make a request for leave with the following information:

1. Employee’s name;
2. Qualifying reason for requesting leave;
3. Statement that the employee is unable to work, including telework; and
4. The date(s) for which leave is requested.

The employee must also provide documentation verifying the leave, such as a copy of any Federal, State, or local quarantine or isolation order or a note from a health care provider advising the employee to self-quarantine due to concerns related to COVID-19.

Employers should retain the documentation to support its claim for a tax credit.

• Impact on Use of Other Paid Leave

This paid sick leave is in addition to other paid time off available to employees. An employer may not require an employee to use other paid leave before the employee uses the paid sick leave under this law; the employee, however, may elect to do so.

Nothing in this law diminishes the rights the employees may have to paid time off under other laws, a collective bargaining agreement, or existing employer policies.

Any employee eligible to take emergency leave and any type of paid leave that is already provided by the employer may not simultaneously take both, unless the employer agrees to allow the employee to supplement the amount the employee receives from the paid emergency leave up to the employee’s normal earnings, with any employer provided leave. For example, if an employee is receiving ⅔ of their normal earnings from paid emergency leave and the employer permits, the employee may use his/her preexisting employer-provided paid leave to get the additional ⅓ of her/her normal earnings so that the employee receives his/her full normal earnings for each hour. 

An employer is not required to permit an employee to use existing paid leave to supplement the amount the employee received from emergency leave.

An employer may not claim, and will not receive tax credit, for any such supplemental amounts permitted.

• Notices and Procedures

Employers must post a notice for employees (or directly send such notice to employees). The notice is located on the U.S. Department of Labor’s website: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

After the first day that an employee receives paid sick leave under this law, the employer may require the employee to follow “reasonable notice” procedures in order to continue receiving the paid sick leave. “Reasonable notice” is not defined in the law.

Employers may not require employees to find or search for a replacement to cover the hours they will be out on sick leave.

Tax Credits for Paid Sick and Family and Medical Leave

Employers may seek quarterly payroll tax credits to help pay for these benefits.

Please Note: We do not represent employees. We only work with employers.

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[1 ]The information provided in this summary is made available by Kainen, Escalera & McHale, P.C. for educational purposes only and should not be considered legal advice. This information should not be used as a substitute for seeking counsel from a licensed professional attorney in your state. It is not intended to provide specific advice or answers to your individual circumstances or legal questions.Please keep in mind that the law may be amended in the near future which may affect the accuracy of this summary. Reproduction or redistribution is permitted only with attribution to the source.

[2] The requirements of the Emergency Federal and Medical Leave Expansion Act will expire on December 31, 2020.

[3] An employer who is subject to a multiemployer collective bargaining agreement may fulfill these obligations by alternative means.

[4] The requirements of the Emergency Paid Sick Leave Act will expire on December 31, 2020.

[5] There will be guidelines issued by U.S. DOL by April 2, 2020 for calculating sick leave hours for part­ time employees with varying schedules.