Expanded Leave Laws During Pandemic

An Overview of the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA)

Abraham F. Barker, Shareholder U nquestionably the COVID-19 virus has drastically changed both our regular lives and our educational systems. There will be in-person instruction and a return to campuses, but none of us know exactly when that will happen. As our cities and state reopen, we may find that answering our questions concerning how to move forward will be more difficult than our questions surrounding the shut down and providing distance learning opportunities. One issue facing school districts is how to respond to requests for leave under the newly expanded provisions related to caring for one’s self or children. Below we present an overview of the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA) as well as responses to questions concerning issues that may arise upon employees’ return to work. Currently, many school districts are paying employees even though they are not working or are not working their regular jobs at full capacity. It should be considered that schools will require employees to return to campus prior to COVID-19 being eliminated and before any vaccine has been made available. In such instances, it will be important to understand the basic tenants of these new laws.

For EFMLEA, all public agencies, including school districts, are covered employers. The general rules are as follows: • All full-time or part-time employees who have worked for 30 days are eligible. • All eligible employees may take up to 12 weeks to care for a minor child if the child’s place of care is closed. • The first 10 days of leave are unpaid,

but the employee can use other leave, including the newly available sick leave options, to receive compensation during the initial 2 weeks. The other 10 weeks is paid at a rate of 2/3 of the employee’s regular rate, capped at $200 per day or $10,000 total.

As relates to the EPSLA, the major difference is that this law does not require an employee to have been working for the district for any set amount of time, however the amount of leave is limited to 10 days for full-time employees (up to $511.00 per day) when they are subject to quarantine or isolation, told to quarantine by a doctor, or have COVID-19 symptoms and are seeking diagnosis. Employees can receive up to $200 per day for 10 days if they are caring for someone that must self-quarantine.

For practical application, if the district is paying employees their typical rate of pay during the shutdown, there is no need to factor in these leave matters as individuals are already being compensated regardless of their leave status. This is where things may change when employees are required to return to work at their physical locations regardless of the how well the virus has been contained.

Under EFMLEA, there is only one qualifying reason: to take care of a child who has no other childcare provider or school to attend. Under EPLSA, leave can be taken for any of the reasons stated above, but only 80 total hours may be taken until the end of 2020. With regard to both of these laws, a school district can require documentation concerning eligibility. Under EFMLEA, there can be an additional request to confirm the governmental agency requiring quarantine, or the medical care provider recommending self-isolation. For both laws, the district can seek information concerning the provider of childcare or education and a statement that alternative arrangements are not available.

With employees returning to work, it is important to consider implementing practices for responding to COVID-19 matters, including: • Are we going to require temperature checks? • How are we going to incorporate temperature checks, and how will they be conducted (By the district? What is the cut-off for a “fever”?) • Are we going to require a doctor’s release before employees return? • How many days will we require employees to be symptom-free before returning to a campus?

Such issues must be part of developing uniform policies and procedures to avoid claims of discrimination and retaliation as districts decide that some positions are no longer required to support the educational goals of the district in a postCOVID-19 world.

There are many questions now. There will be more in the future. Districts should consult their employment counsel as issues arise.

Any questions concerning these materials can be addressed to abarker@edlaw.com.

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