Paid Sick Leave and Extended FMLA

In the Age of the Families First Coronavirus Response Act Paid Sick Leave and Extended FMLA

Jennifer Hall, Associate Attorney A s a full-fledged Gen Xer, I was pleased to see that R.E.M’s “It’s the End of the World As We Know It (And I Feel Fine)” had cracked the top 100 songs again. It is unfortunate that the reason the song has had a resurgence is because it is anthemic of the impact COVID-19 is having on the world.

As you know, Congress and the President recently approved and signed into effect the Families First Coronavirus Response Act (FFCRA) and for purposes of the Family and Medical Leave Act (FML)– at least until December 31, 2020, could this be the End of the World As We Know It for FML?! The Emergency Paid Sick Leave portion of the act provides that as long as an employer has work available, if an employee is unable to work or telework for one of the six reasons listed below, the employee is entitled to paid leave at a commensurate rate and subject to the limits I will discuss later in the article.

There are two parts to the FFCRA: Emergency Paid Sick Leave and Extended Family and Medical Leave. Both sections are only effective from April 1, 2020 through December 31, 2020 (at this time, unless extended). While both are applicable to public employers like school districts, they each have their own different eligibility criteria when it comes to employees. Full time employees are eligible for up to eighty (80) hours of emergency paid sick leave while part time employees are eligible for the average hours they work over a two week period if their schedule is regular and known, or the average hours worked in a six month period if their schedules are variable. For the emergency paid sick leave portion of the act, unlike for the EFML section, there is NO waiting period to become eligible to utilize this benefit. Employees are eligible immediately upon commencing their employment.

Under Emergency Paid Sick Leave (EPSL), an employee becomes eligible for leave on their first day of employment; however, the extended Family and Medical Leave Act (EFML) is a little different. For an employee to be eligible for EFML, the employee must have been employed for thirty (30) days on the date the employee requests EFML leave 1 .

EMERGENCY PAID SICK LEAVE (EPSL)

There are six reasons that an employee may qualify for Emergency Paid Sick Leave and for each of them there must be work available and the employee must be unable to work or telework because:

1. Employee is subject to a quarantine or isolation order related to

COVID-19; 2. Employee is advised by a health care provider to self-quarantine because of

COVID-19; 3. Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; 4. Employee is caring for an individual subject to or advised to quarantine or isolate; 5. Employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or 6. Employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

If an employee meets criteria 1-3 above, the employee will be eligible for paid leave at 100% of their regular rate not to exceed $511 per day or $5,110 total. If the employee meets criteria 4-6 above, then the employee will be eligible for 2/3 their regular rate of pay not to exceed $200 per day or $2,000 total. Full time employees are entitled to that pay for up to 80 hours, while part time employees are entitled to that pay for up to the number of hours they generally work in a two week period.

EXTENDED FAMILY AND MEDICAL LEAVE (EFML)

The only way that an employee qualifies for EFML is if the employee has been employed for at least 30 days on the day the employee requests leave, and if the leave is for Reason #5 above, when the employee is unable to work or telework because the employee must care for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions. If an employee requests this type of leave, the employer may ask for documentation that reflects that the school or place of child care is closed and may seek information regarding the age(s) of the employee’s child(ren). The IRS has provided guidance, which has been adopted by the Department of Labor, that children over the age of 14 generally are able to care for themselves during daylight hours. Therefore, employers are able to ask the ages of the employee’s children and for those children over the age of 14 may inquire as to why the employee must care for them.

USE OF OTHER LEAVE

Even with the addition of EPSL and EFML, it is important to remember that an employee generally still has access to paid leave in the form of sick or personal leave, and unpaid leave in the form of traditional Family and Medical Leave (FML) and Temporary Disability Leave (TDL). However, it should be noted that traditional FML and EFML are uniquely intertwined in that use of EFML and/or FML may only result in a total of 12 weeks of leave. An employee does not get 12 weeks of leave for EFML and another 12 weeks of leave for FML in the same 12-month period. Therefore, if an employee has already taken FML prior to requesting EFML the amount of FML leave already taken will be subtracted from the amount of requested EFML to determine how much leave the employee actually receives. The application and interrelation of state, local, FML and temporary disability leaves with EPSL and EFML are unique decisions that must be made by each local school board and therefore, it is recommended that districts consult with their legal counsel about issues pertaining to the application of these optional provisions.

The following examples are intended to help with implementing the EPSL, EFML and other leave, paid or unpaid.

Example 1: A city wide shelter in place order causes the school district to no longer offer bus service, does a school bus driver still qualify for EPSL because of the shelter in place order? No. The shelter in place order has caused the school to close thereby resulting in no work available for the bus driver. Therefore, the bus driver would not be eligible for emergency paid sick leave. The fact that the bus driver is also under the shelter in place order in the example is irrelevant. This scenario is based on whether there is work for the bus driver to do. A shelter in place order does not automatically entitle an employee to emergency paid sick leave.

Example 2: Schools are closed and have gone to remote or virtual teaching. Both substitute teachers and regular classroom teachers are under a local shelter in place order. The teacher is conducting virtual learning but the substitute teacher is not. The District has no work for the substitute teacher. Does the substitute teacher qualify for EPSL because of the shelter in place order? No. A substitute arguably has no work to do because the schools are not using substitutes to virtually teach students; therefore, the substitute would not be eligible for emergency paid sick leave. Does the teacher qualify for EPSL because of a shelter in place order? No. The teacher does not qualify for EPSL because even though she is under the same shelter in place order she is still able to teach remotely. However, if the teacher was infected with COVID-19 and unable to teach remotely, she would then be eligible for EPSL because there is work for her to do but she is unable to work because of one of the six qualifying reasons for EPSL.

Example 3: Assume that during Easter weekend the district central office receptionist went to New Orleans, Louisiana. The District is open but the receptionist is required to self-quarantine for two weeks as a result of her trip to a hard hit COVID-19 area and the Governor’s Executive Order. Does the receptionist qualify for EPSL? Yes. However, because the receptionist was in Louisiana and the government has required that she selfquarantine for 14 days, and if it is determined that she cannot do her work at home, she would be eligible for emergency paid sick leave at 100% of her rate for up to 80 hours during her self-quarantine. She could still be required to provide documentation of the request from the CDC, proof of travel, or her doctor.

Example 4: Assume the Director of Finance, identified as a key employee by Administration, is afraid to come to work at the District because the employee is afraid he may get sick. The District is open to key employees, and has safely implemented social distance protocols. The Director of Finance cannot work remotely. Is the Director of Finance eligible for EPSL? No, neither Reason #2 nor #3 can be used to qualify an employee for paid sick leave simply because the employee is afraid to come to work or afraid they may get sick. To qualify for paid sick leave under these categories the employee has to take the affirmative step of contacting a doctor and have a doctor’s recommendation that self-quarantine or isolation is necessary.

While the EPSL and the EFML have changed the leave landscape, at least until December 31, 2020, they have not drastically altered FML or the way schools have and should continue to utilize accrued leave that is either paid or unpaid. Simply put, the FFCRA has not really ended the FML World as We Know it, but instead it has added tools, specific to COVID-19. With the situation we are in right now, the addition of these tools should provide more options and flexibility to employees and employers alike.

Jennifer Hall is an Associate Attorney with Walsh Gallegos Treviño & Kyle , P.C. She can be reached at jhall@wabsa.com.