Update: New Paid Family and Medical Leave: The Families First Coronavirus Response Act

The Families First Coronavirus Response Act (“FFCRA”) (Pub. Law No.116-127), originally H.R. Bill 6201, containing, inter alia, the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”), which provide paid leave to small business employees affected by the SARS-COV-2 coronavirus COVID-19 outbreak will become effective on April 1, 2020.

These new laws apply to all employers with fewer than 500 employees. The government will help finance the paid leave through refundable tax credits.

Nearly every person in the country working for a small business (all employees of employers of 10-499; and employers where 10 or more gather), appear to immediately qualify for some leave based on the closure of all schools and the current recommendations from the federal, state, and local health authorities to self-quarantine, social distance, and self-isolate. The exception is those in “critical infrastructure industries”, as defined by the office of the President of the United States to include: medical workers, pharmaceutical workers, and workers in the food supply chain.

Emergency “EPSLA” Leave
Through 2020, employees are entitled to paid sick leave for the following purposes:

(1) The employee is subject to a Federal, State, or local quarantine or isolation 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 an order as described in subparagraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Up to 80 Hours of EPSLA Leave. Full-time employees of covered employers are entitled to up to 80 hours of emergency paid sick leave; part-time employees of covered employers are entitled to an amount of emergency paid sick leave up to the average number of hours they work over a two-week period. Employees are able to take this leave regardless of the length of their service with their current employer.

Getting Paid for EPSLA Leave. Every employee who takes emergency paid sick leave is entitled to compensation for leave at a rate no less than their “regular rate” of pay for leave taken for the employee’s own coronavirus-related conditions or exposure (reasons 1-3, above), but capped at $511 per day and $5,110 total per employee. Every employee who takes emergency paid sick leave for non-coronavirus, the care of sick family members and/or children, or for school closures (reasons 4-6, above), are entitled to be paid no less than two-thirds of their “regular rate” of pay, capped at $200 per day and $2,000 total per employee.

EPSLA Leave is Additive. Emergency paid sick leave under the FFCRA is in addition to any other paid time off already offered. The FFCRA says employers may not change their paid leave policies in order to avoid the impact of the new law(s). In addition, employers may not require employees to use any employer-provided benefits before taking EPSLA leave.

Public Health Emergency Leave (“EFMLEA”)
Eligible employees (those employed for 30+ days) will be able to take up to 12 weeks of “public health emergency leave”, during the period beginning on the date the Emergency Family and Medical Leave Expansion Act takes effect, and ending on December 31, 2020, because of a qualifying need related to a public health emergency because: the 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 of such employee 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.

Getting Paid for Public Health Emergency Leave. Employees are not entitled to pay for the first ten (10) days of EFMLEA leave, but they may substitute any accrued vacation or sick during the unpaid portion of public health emergency leave, and presumably, EPSLA leave compensation can be substituted for the first two weeks of EFMLEA leave. Employers may not require employees to use earned or accrued paid time off or vacation during the emergency leave.

Employees who take EFMLEA in excess of 10 days are entitled to paid leave for the duration of the qualifying leave (up to 12 weeks). The paid leave shall not be less than two-thirds of an employee’s “regular rate” of pay for “the number of hours the employee would otherwise be normally scheduled to work”, but is capped at $200 per day and $10,000 total per employee. Most employees who take public health emergency leave will be entitled to be reinstated to their previous positions or an equivalent position upon returning from leave.

Exceptions. The U.S. Department of Labor retains the authority to issue regulations and limitations to: 1) prohibit “certain health care providers and emergency responders” from taking public health emergency leave; and/or, 2) “exempt small businesses with fewer than 50 employees … when the … requirements would jeopardize the viability of the business as a going concern.”

The FFCRA includes relaxed employment reinstatement requirements for employers who employ fewer than 25 employees. Those small employees do not need to restore an employee to his or her job following public health emergency leave if: 1) the “position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer (i) that affect employment; and (ii) are caused by a public health emergency during the period of leave”; 2) the employer makes “reasonable efforts” to restore the employee to an equivalent position; and 3) if the employer’s “reasonable efforts” fail, the employer makes “reasonable efforts” to contact the employee if an equivalent position becomes available during the following year.

Anti-Discrimination and Other Termination Protection. Employees remain entitled to the protection of the legacy Family and Medical Leave Act, the Americans with Disabilities Act, and all other state and federal anti-discrimination laws.

Under Wisconsin common law, it is a wrongful discharge to terminate an employee in contravention of a public policy underlying existing law. If state or federal authorities issue orders to close or shutter certain business or industries or to take other precautions, employees may refuse to report to work in order to comply with such public policy decrees and directives. Employees who are terminated in contravention of the public policies underlying governmental orders and mandates regarding the COVID-19 coronavirus will have recourse pursuant to Wisconsin common law in addition to the FFCRA, EFMLEA, and EPSLA, in addition to any applicable legacy employee rights laws, such as the FMLA and ADA.

Unemployment Insurance. Employees who are furloughed or laid off prior or subsequent to taking EPSLA, EFMLEA, and/or FMLA leave due to coronavirus should file for Unemployment Insurance benefits. In Wisconsin, the Governor Evers, by Executive Order, has relaxed the unemployment insurance work search requirements and has deemed certain employees impacted by the pandemic to be able and available for work for purposes of the unemployment insurance statutes. It is anticipated that unemployment insurance benefits will be further expanded and/or accelerated by other federal and state legislation in the near future due to COVID-19.


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