On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law. The FFCRA includes, among other provisions, two laws that provide workers at organizations with fewer than 500 employees and covered public sector employers with paid, job-protected leave for specific COVID-19-related reasons.
Specifically, the Emergency Paid Sick Leave Act (EPSLA) offers workers up to 80 hours (or two work weeks) of paid leave, and the Emergency Family and Medical Leave Expansion Act (EFMLA) provides eligible employees up to 12 weeks of paid leave due to school/childcare closures and unavailability caused by COVID-19. An overview on the specifics of these laws can be found here.
The U.S. Department of Labor (DOL) has issued a number of guidance materials to assist in the implementation of these laws, including a Q&A and a temporary rule. The following is an overview of the points highlighted in that document:
1. Private sector employers that provide EPSLA and/or EFMLA are eligible for refundable tax credits and must retain documentation for such credits. Documentation (discussed here) must be retained for four years, whether requests are granted or denied.
2. Employees taking EFMLA and teleworking employees taking EPSLA may take leave intermittently if the employer agrees.
3. Employees working at their usual worksite may take intermittent EPSLA only if it is to care for the employee’s child whose school/day care is closed or if childcare is unavailable, and only if the employer agrees.
4. If an employee is laid off or furloughed, the employee is not eligible for EPSLA or EFMLA during the layoff or furlough.
5. If an employee’s scheduled work hours are reduced, the employee may not use EPSLA or EFMLA for the hours they are no longer scheduled to work.
Other than for childcare-related reasons, employees may not use EPSLA and EFMLA together for any COVID-19-related reason.
6. Employees may not collect unemployment while receiving EPSLA and/or EFMLA.
7. Employees on EPSLA or EFMLA are entitled to continue group health coverage during the leave.
8. Employees may not use pre-existing paid time off (PTO) and EPSLA concurrently for the same hours, but an employee and employer may agree that they can supplement their EPSLA with accrued PTO.
9. Employers may require employees to use certain accrued paid leave concurrently with EFMLA. After the first two weeks of EFMLA, employees may elect — or employers may require — an employee to use accrued paid leave that would be available for the childcare-related reason under an employer’s policy (but not sick leave) concurrently with EFMLA. Employers may not require employees to use existing paid leave concurrently with EPSLA.
10. Employers may pay employees more than they are entitled to for EPSLA or EFMLA but will not receive a tax credit for the excess.
11. For purposes of EPSLA and EFMLA, “employee” includes all U.S. full- and part-time employees and “joint employees” working on an employer’s site temporarily and/or through a temporary agency. It does not include independent contractors.
12. For purposes of EPSLA and EFMLA, a “son or daughter” is the employee’s biological, adopted, foster or stepchild; a legal ward; or a child for whom the employee is standing in loco parentis. It also includes an adult son or daughter (18 years of age or older) who is incapable of self-care because of a mental or physical disability.
13. Employees utilizing EPSLA and EFMLA are entitled to job restoration in the same manner as the Family and Medical Leave Act (FMLA), with an additional exception provided for employers with fewer than 25 employees, discussed here.
14. Employees eligible for both traditional FMLA and EFMLA are entitled to 12 weeks of leave total during the 12-month benefit period.
15. Other than for childcare-related reasons, employees may not use EPSLA and EFMLA together for any COVID-19-related reason. EFMLA may only be used for the childcare-related reason, while EPSLA may be used for this reason as well as the five others listed here.
16. For EPSLA, “full-time” employees are those working 40 or more hours per week, and “part-time” employees are those working fewer than 40 hours per week.
17. Employers of health care providers and/or emergency responders (as defined here) are not required to provide such employees EPSLA or EFMLA.
18. A small business (fewer than 50 employees) may claim exemption (discussed here and here) from the requirements of the EPSLA (for childcare-related leave only) and EFMLA when providing such leave will jeopardize the viability of the business as a going concern.
19. For purposes of EPSLA, “subject to a Quarantine or Isolation Order related to COVID-19” includes quarantine, isolation, containment, shelter-in-place or stay-at-home orders issued by any government authority that causes the employee to be unable to work although the employer has available work.
20. Employees are eligible for EFMLA if, at the time their leave is to commence they: 1) have been on the employer’s payroll for at least the 30 calendar days prior or 2) they were separated March 1, 2020, or thereafter, and rehired on or before December 31, 2020, provided that they had been on the payroll for 30 or more of the 60 calendar days before layoff or termination.
21. For EFMLA, employees should provide notice as soon as possible. Thereafter, employees can be required to follow reasonable notice procedures (typically usual and customary reporting requirements). For EPSLA, employees can be required to follow reasonable notice procedures (typically usual and customary reporting requirements) after the first workday, or portion of the workday, on which they took leave. (This is discussed further here).
22. An employee may use their two-week allotment of EPSLA once prior to December 31, 2020, whether used while employed by their current employer or in the employ of another employer.
