COVID-19 and Emergency FMLA and Paid Sick Leave: Ten Questions and Answers to Guide Private And Public Employers

By editor on March 23, 2020

Both Emergency Family Medical Leave Act (EFMLA) and Emergency Paid Sick Leave (EPSL) begin April 2, 2020 and expire on December 31, 2020.

1. Which Employers are Covered?
All private employers with fewer than 500 employees and all public employers (regardless of the number of employees). Both allow the Department of Labor to issue regulations exempting small businesses with fewer than 50 employees if applying these provisions would jeopardize the viability of the business.

2. Which Employees are Eligible?
For the EFMLA, full-time or part-time employees who have been on the employer’s payroll for 30 days or longer as of April 2. For the EPSL, any employee, regardless of length of service.

3. How Does an Employee Qualify for EFMLA Leave?
Three ways: 1) An employee has COVID-19 symptoms; 2) An employee must care for family member with COVID-19 symptoms; or 3) An employee cannot work (in the office or remotely) because of the need to care for the employee’s minor child if the child’s school or childcare is closed due to a public health emergency due to COVID -19. This essentially means all employees who have childcare obligations based on school closures, statewide, are likely to qualify for EFMLA.

4. Is the Expanded EFMLA Paid?
The first ten days (two weeks) are unpaid; however, an employee can substitute accrued paid sick leave during the first ten days or trigger the new emergency paid sick leave. The remaining 10 weeks of the EFMLA (covering ten weeks) is paid at 2/3 the employee’s regular rate of pay, for the number of hours the employee would be otherwise scheduled to work. The EFMLA pay cap is $200 a day/$10,000 total.

5. Is There Job Protection Under the EFMLA?
Yes, the employee is to return to the same or equivalent position. A specific EFMLA exception applies for employers with fewer than 25 employees, if there are operational changes, such as a reduction in force or restructuring due to downturn in business. Regardless of the number of employees, the FMLA has always had an exception when the employee’s position is eliminated and there is no other available, vacant position for the employee.

6. How Does an Employee Qualify for EPSL?
Generally, any employee subject to a federal, state or local quarantine or isolation order related to COVID-19 (Please Note: With limited exceptions, all employees working in California, are currently under an isolation order.) In addition, persons with a COVID-19 diagnosis or symptoms, or who are under a doctor-quarantine order. This would also apply to employees caring for persons under a quarantine or isolation order, or caring for a minor child whose school or childcare is closed because of COVID-19.

7. How Much Paid Sick Leave?
80 hours maximum, but with varying caps. If the employee is sick from COVID-19 or under a quarantine or an isolation order, then at the employee’s regular rate of pay but not exceeding $511 day/$5110 total. If a caregiver, then paid at 2/3 of the daily rate of pay, with a maximum of $200 a day/$2000 total.

8. Can the Employer Require the Employee to Use Accrued, Paid Sick Leave Before EPSL?
No. The EPSL is supplemental. An employee can elect to substitute any accrued paid sick leave or vacation for the first 10 days of unpaid leave under the EFMLA, but the employer cannot force the employee to do so.

9. Does Any Unused EPSL Carryover?
Not under the federal law. However, under the California paid sick leave laws, carryover of paid sick leave granted under state or local laws is required. This is an area that needs further clarification.

10. Can an Employee Sue for Retaliation or Interference?
Yes, under both the EFMLA and EPSL. Employers should consult with legal counsel to determine ways to comply with the law while not exposing themselves to retaliation or interference claims.

This communication may be considered advertising in some jurisdictions. It is intended to provide general information about legal developments and is not legal advice. If you have questions about the contents of this alert, please contact Peter Glaessner at (415) 697-2000 or pglaessner@aghwlaw.com or Lily Adam at (415) 697-2000 or ladam@aghwlaw.com.