Article Summary

Oswald

During the COVID-19 pandemic, employees may need to stop working either because they've been confined to home for medical reasons or because they must care for children or other family members. Since the federal Family and Medical Leave Act doesn't fully address this extraordinary situation — and because the FMLA also doesn't require much-needed paid leave — Congress stepped in with the Families First Coronavirus Response Act, which was signed by President Trump on March 18, 2020. The statute creates two new types of employer-paid leave that are specific to the COVID-19 pandemic. Each is helpful, but both have major limitations. Below, TELG sketches out the new leave options and provides a guide for employees who may want to use them.

This article by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on March 23, 2020.

By R. Scott Oswald

INTRODUCTION

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA), a bipartisan law that aims to cushion the negative effects of the COVID-19 pandemic on U.S. society. Among other things, the new statute tells employers to pay employees who take family and medical leave for coronavirus-related reasons — but with exclusions and limitations. The FFRCA is a positive step for some employees, but it leaves plenty of others without assistance.

This article summarizes the key leave provisions of the FFCRA and offers some high-level guidance for employees. Bear in mind, however, that the new law supplements and interacts with the existing federal Family and Medical Leave Act (FMLA); with other federal, state, and local leave laws; with other coronavirus emergency measures at all levels, including laws and orders yet to be instituted in a fast-changing environment; and with employer policies that may, in some cases, be more generous than the law requires.

To understand your individual situation, please consult an employment attorney. Much will depend on your employer’s location and its pre-existing leave policies.

KEY TAKEAWAYS

We’ll start, alas, with a bit of confusion: There’s some debate about when the paid-leave requirements of the FFCRA became (or will become) operative. On March 24, the U.S. Department of Labor stated that the provisions don’t take effect until April 1, 2020. We disagree: In our opinion, the provisions went into effect on March 18 upon the President’s signature of the FFCRA, meaning that employees can invoke them right now.

Admittedly the FFCRA’s phrasing is unusual. We believe that previous U.S. Supreme Court opinions point at just one valid interpretation, but employers will likely rely on government guidance. If you would qualify for paid leave now and fear being laid off before April 1, you may want to consider preserving your rights by making an immediate claim — even if your employer is likely to reject it.

The FFCRA has two sub-laws that require employers to provide paid leave. Both provisions expire on December 31, 2020. The first, the Emergency Family and Medical Leave Expansion Act (EFMLEA), amends the FMLA and is aimed at employees who must care for children under 18 years old because of coronavirus-related restrictions such as school closures. The second, the Emergency Paid Sick Leave Act (EPSLA), applies to employees who must take leave for themselves or to take care of a family member — not just a child — for specified coronavirus-related reasons.

The EFMLEA and EPSLA apply only to employers with fewer than 500 employees, which eliminates a huge chunk of the economy. In addition, the laws may not apply to certain employers with fewer than 50 employees or to certain healthcare workers or first responders, based on circumstances and regulations yet to be issued by the U.S. Department of Labor. Depending on your employment details, then, the new laws may not be relevant to you.

Under EFMLEA, qualifying employees are guaranteed 12 weeks of leave to care for their children, with employers required to pay all but the first two weeks. For the first two weeks you can use any paid leave that your employer already supplies — such as vacation leave — or you might invoke the EPSLA, or a combination of the two, at your option. Once your first two weeks of EFMLEA leave have passed, your employer must pay you at least two-thirds of your regular pay for the remaining 10 weeks. This legal requirement has a cap of $200 per day, although employers may choose to pay more. Unlike the “regular” FMLA, the EFMLEA doesn’t require employees to have worked for 12 months at their employer before taking qualified leave; the requirement here is only 30 days.

Under EPSLA, meanwhile, qualifying employees are guaranteed two weeks of paid leave if they are unable to work (including remotely) for coronavirus-related reasons. The law makes a distinction between employees who can’t work because they are isolated or sick themselves, and employees who can’t work because they are taking care of a family member. If you are isolated or sick yourself, your employer must pay your regular pay rate up to a limit of $511 per day. If you take leave to care for someone else, your employer need pay you only two-thirds of your regular pay, up to a limit of $200 per day.

If your company’s policy already allows you to take paid sick or other leave, you can invoke the EPSLA before exhausting such leave, at your option. Employers can’t require employees to take this leave in a certain order. Unlike the EFMLEA, the EPSLA has no minimum tenure requirement — you can invoke it regardless of how long you have worked for your employer.

COMPARISON OF NEW LAWS TO ‘REGULAR’ FMLA

If you need to take leave because you’re unable to work yourself because of COVID-19, or if you must care for family members who are not your children, you will likely invoke some combination of EPSLA paid leave and the “regular” FMLA, which requires only unpaid leave (and which has different eligibility requirements than EPSLA). If you’re taking leave to care for your children, it may be a combination of EPSLA and EFMLEA — which could allow you to be paid throughout the entire 12-week period if you qualify. Bear this in mind as you communicate with your employer about your reason for taking leave.

Below is a chart that compares the three relevant federal leave provisions in simplified form. Remember that all three laws contain exceptions and niggly definitions, which you may want to discuss with an attorney. Also remember that the new federal laws may not be your only path to get paid if you can’t work: Your company’s regular policies may allow such pay; or you may have insurance that covers it; or some other form of payment may be available via new state or local laws — for instance, by allowing you to collect unemployment benefits while on hiatus.

† In our firm’s opinion. However, guidance from the U.S. Department of Labor sets the date as April 1, 2020.

‡ Applies to leave taken for self. If leave is taken to care for family member, rate is 2/3 of regular pay with cap of $200/day.

* Exceptions may apply, including under EFMLEA for companies with fewer than 25 employees. EPSLA leave-taking is protected via the Fair Labor Standards Act.

** In proportion to their average hours.

*** Exceptions may apply; pending regulation.

†† Subject to complex rules/procedures. EFMLEA paid leave is available only to “Title I” FMLA employees such as U.S. Postal Service workers and D.C. government workers; ask your agency whether it falls under Title I.

GUIDANCE FOR EMPLOYEES WHO WANT TO TAKE COVID-19 LEAVE

To start, remember that we are in a fast-changing situation — and that all cases are different. This article provides a general framework for thinking about your leave situation as of March 25, 2020, but it is not individualized legal advice. If you are unclear about how the factors below will interact in your specific situation, please seek advice from an employment attorney.

With that said, here are some things you should weigh before making a leave request:

• Whether your employer is bound by the regular FMLA and/or the new federal leave laws. Depending on your employer, the size of its workforce, and your tenure there — and possibly on Labor Department exceptions yet to be created — you may be covered by none of these laws, all of them, or any combination in between. The laws define company size in somewhat technical ways; if you’re in doubt about your employer’s size category, ask your H.R. person.
• Your employer’s specific leave policies. Now is the time to dust off the employee manual you probably received on your first day of work. Study the section about leave-taking very closely. Some employers are more generous than the law requires, which may affect your decision about whether/when to claim, for instance, EPSLA paid leave.
• Your insurance situation. Some employees may be able to claim short- or long-term disability pay or other contingent insurance benefits, either via a company-sponsored plan or possibly via self-paid supplemental insurance from companies such as Aflac. If you have such a plan, review it carefully to see if it will help you. If it will, you must still decide when to trigger it.
• Your employer’s financial situation. Some employers may survive or even thrive through the pandemic, making your job relatively secure, but other companies already are curtailing work or shutting down operations. Emergency leave may not help you if your employer can’t make payroll anyhow — but on the other hand, your right to such leave disappears entirely after you’re lawfully terminated. If your employer seems unstable and you already have a valid reason to take leave, an early claim may offer you some protection for a period of time. And because of anti-retaliation provisions, a valid leave request may force even a shaky employer to be more cautious about firing you.
• State and local laws. Depending on your location — and, frankly, on legislators whose priorities change daily — you may already have, or soon could have, more options than federal law demands. In Washington, D.C., for instance, many employees who are laid off, furloughed, unable to work, or even have work hours reduced due to COVID-19 may claim unemployment benefits under more lenient terms than previously. An unemployment check may be less than your regular pay, but it’s likely better than completely unpaid FMLA leave. As the COVID-19 crisis escalates, more state legislatures may offer such measures to protect employees.
• Possibly competing reasons to claim leave. If you’re a qualifying employee who already has young kids who need care due to the pandemic, the EPSLA/EFMLEA combination offers you 12 weeks of paid leave, albeit at a reduced rate of pay. Even if you feel you can continue working, 12 weeks of protected leave may be starting to look attractive — especially as economic conditions worsen. You should never request leave in bad faith, but neither should you blindly wait until you become sick yourself. If you end up claiming leave based on your own condition, you may end up being paid less overall, depending on all the factors above.

Once you have considered these factors and decided what to do, the next step is easy: Make your coronavirus leave request in writing — e-mail should be fine — to the person who is specified for such requests in your employee manual. It may be your immediate boss, for example, or an H.R. person, or someone else. Specify your reason for requesting leave: We have uploaded the text of the EFMLEA and EPSLA to help you, highlighting the valid reasons for leave in yellow. You don’t need to name the law(s) under which you’re making your request, but it may be helpful to do so.

Your employer may respond by granting the leave if it’s obvious that you qualify. Alternatively, it may request some documentation of your situation, or it may say why it believes you don’t qualify. Regardless, it should notify you of your rights, outline next steps, and specify a period for your response. A plain refusal, without more, is not adequate under the law.

Things to bear in mind:

• Everyone is under extraordinary pressure right now, including your boss, your company’s H.R. people, and anyone else who may handle your leave request. Assume good faith and treat everyone with respect, even if you run into trouble.
• The EFMLEA and EPSLA are brand new laws, and your employer may not fully understand all their provisions. In particular, as noted above, your employer may believe the laws don’t become effective until April 1. Legal misconceptions won’t affect your rights, but they may take some time to resolve.
• Also, the interactions between the EFMLEA and EPSLA and other laws, including new local laws, haven’t yet become clear. Complications may emerge, and your employer may need to seek legal advice along the way. As long as it’s a good faith process, this is likely OK.
• Regardless of the outcome of your leave request, your employer may not retaliate against you for making the request. In normal times, retaliation might mean denying you a promotion, changing your work conditions, or even firing you. Amid a pandemic, your employer may be terminating people anyway — but if you’re singled out somehow, that could be retaliation (or, indeed, discrimination if it’s done on another forbidden basis).
• You may find it valuable to consult with an employment lawyer at any stage of this process, including in the formulation of your request, but a consultation may be especially useful if you hit a stone wall with your employer.

We hope this (mostly!) non-technical guidance is helpful to you in this stressful time. The good news is that employees have more leave rights now than they did on March 17 — and pressure is mounting on Congress and local governments to add even more. This is not a normal situation by any means, but it is not without hope.

If you would like to discuss your individual circumstances, our attorneys are available to you.

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R. Scott Oswald is managing principal of The Employment Law Group, P.C.