The FMLA has been amended, temporarily, and expanded to require covered employers to provide leave for a “qualifying need related to a public health emergency.” The provisions of the FMLA that have been in effect since 1993 still apply to employers who employ 50 or more employees for employees who require leave for “serious health conditions.”
NOTE: For employers who have 50 or more employees, COVID-19 illnesses may constitute a serious health condition. Therefore, if an employee becomes ill with COVID-19, or needs leave to care for a family member who becomes ill with COVID-19, the employee would likely be entitled to unpaid FMLA for their absence in accordance with the terms of the FMLA and the employer’s policy.
NOTE: Employers with fewer than 500 employees are also required to provide Emergency Paid Sick Leave (requirements summarized below).
The following is a summary of the expanded requirements for leave under the “EFMLA.”
- For EFMLA: Any employer who employs “fewer than 500 employees.”
- For FMLA: Any employer who employs “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.”
- For EFMLA: Any “employee who has been employed for at least 30 calendar days by the employer” from whom leave is requested.
- For FMLA: Any employee who has been employed for at least 12 months and who has worked at least 1,250 hours during the preceding 12 months.
“Qualifying Need Related To Public Health Emergency”
- For EFMLA: “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 … due to a public health emergency.”
- A “public health emergency” means “an emergency with respect to COVID-19 declared by a Federal, State or local authority.”
- The State of Alaska has issued a “Public Health Disaster Emergency Declaration for COVID-19” as of March 11, 2020.
EFMLA Leave Requirements
- The first 10 days of EFMLA can be unpaid.
- Employees may elect to use any accrued vacation leave, personal leave, or medical or sick leave to substitute for the unpaid leave.
- After 10 days of unpaid EFMLA, Employers are required to provide paid leave for an additional 10 weeks.
- Paid leave is calculated as “not less than 2/3rds of the employee’s regular rate of pay” multiplied by the number of hours the employee would otherwise be normally scheduled to work.”
- Paid Leave shall not exceed $200/day or $10,000 in total.
Job Restoration Rights
- For employers with 25 or more employees, employees have the same right to be restored to their position as they would have had under FMLA. Employees must be returned to the same or an equivalent position
- For employers with fewer than 25 employees, if a job no longer exists due to an economic downturn or conditions caused by the public health emergency, the employer is exempted from the job restoration requirement of the EFMLA. The employer must make reasonable efforts to return the employee to an equivalent position and must continue to do so for up to a year following the leave.
- The EFMLA requirements take effect on April 1, 2020.
- The EFMLA automatically expires on December 31, 2020.
EMERGENCY PAID SICK LEAVE ACT (EPSLA)
Separate and apart from EFMLA, all employers who employ fewer than 500 employees are required to provide up to 80 hours of paid sick leave to full-time employees, and an amount of paid sick leave to part-time employees equal to the number of hours they would otherwise normally work in a two week period. This requirement also goes into effect on April 2, 2020.
To receive paid leave under the EPSLA, the employee must be absent from work for one of the following reasons:
- The employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
- The employee is caring for an individual who is subject to a quarantine or isolation order related to COVID-19 or who has been advised to self-quarantine.
- The employee is caring for a son or daughter if their school or place of care has been closed due to COVID-19 precautions.
Paid sick leave ends beginning with the employee’s next scheduled workshift after the need for leave is terminated.
Employers may not require employees to use accrued paid sick leave as a condition for providing the required paid sick time.
Paid sick time is available immediately.
Limits on amount of pay required for paid sick time:
- For employees on leave for reasons (1)-(3) above, the amount of paid sick leave must be equal to the employee’s normal hourly rate, but does not have to exceed $511/day or $5,110 in total.
- For employees on leave for reasons (4)-(5) above, the amount of paid sick leave must be equal to the employee’s normal hourly rate, but does not have to exceed $200/day or $2,000 in total.
- Subject to the above requirements and caps, the employee’s rate of pay cannot be less than the greater of their regular rate of pay or the minimum wage in effect under the FLSA or the minimum wage in effect in Alaska (currently $10.19/hour).
Employers who are required to provide Emergency Paid Sick Leave, there may be tax credits available. Contact your tax professional for advice on the tax implications of the EPSLA.
If you have questions about how these requirements may impact your business, please contact us and we would be happy to help you.