New Federal Employee Leave Requirements Under COVID-19

UPDATED: March 20

This week, the federal government enacted new legislation in response to the COVID-19 pandemic. The Families First Coronavirus Response Act includes new paid and unpaid leave requirements for all public employers — and private employers with up to 500 employees. The legislation provides that the paid and unpaid leave provisions shall take effect not later than 15 days after its enactment, and the U.S. Tresasury Secretary is expected to set an effective date shortly.

New Qualifying Category of FMLA Leave
The Families First legislation created the Emergency Medical Leave Expansion Act, which makes a new qualifying reason, and eligibility for a much broader category of employees, for job-protected leave under the federal Family and Medical Leave Act. Employers with 50 or more employees already needed to provide FMLA-eligible employees with leave due to an employee’s own COVID-19-related illness or to care for a family member with such illness. The EFMLEA will permit eligible full- and part-time employees with up to 12 weeks of job-protected leave if they are unable to work or telework to take care of their minor children in the event of a school closure or if their child care provider is unavailable due to COVID-19. Eligible employees are those who have been employed for at least 30 calendar days. All public employers and private employers with up to 500 employees must provide this leave to eligible employees. Employees still have a combined total of 12 weeks of FMLA leave, regardless of the reasons for which leave is taken (except for those who qualify for military caregiver leave, which provides for a total of 26 weeks). Part-time employees are eligible for a prorated amount of leave. Therefore, if employees have already used FMLA for another qualifying leave, they would only be entitled to the remaining portion of the 12 weeks. This leave will not count against an employees’ leave entitlement under the California Family Rights Act.

Leave under the EFMLEA, unlike other categories of FMLA, is also paid by the employer. The first 10 days of such leave can be offered on an unpaid basis, during which an employee can elect to use leave banks or utilize the Paid Sick Leave benefit described further below. The remainder of this new leave category (to the 12 week FMLA total) must be paid by the employer at a rate no less than minimum wage or 2/3 of the employee’s regular rate of pay, whichever is greater. There is a cap of $200 per day and $10,000 total.

There are two categories of employees that employers could choose to exclude from eligibility for this new leave: health care providers and emergency responders. For now, employers would need to specify this exemption by policy. The Secretary of Labor is also authorized to issue new regulations that may exclude certain health care providers and emergency responders from the definition of “eligible employees,” and may also provide exemptions for certain small businesses.

Paid Sick Leave
The Emergency Paid Sick Leave Act requires employers to provide eligible full-time employees with up to 80 hours of leave, with full pay, who are not able to work or telework due to a quarantine order, a health care provider’s advisement to self-quarantine, or to seek a diagnosis when experiencing COVID-19 symptoms. Eligible part-time employees are entitled to fully paid time off on a pro rata basis, calculated on the average hours such employees work in a 2-week period.

Eligible full-time employees can also use these 80 hours of paid time off, at 2/3 of their regular pay, to care for an individual who is subject to a quarantine order or a health care provider's advisement to self quarantine, or to care for a minor child whose school or child care provider is closed or unavailable due to COVID-19. Eligible part-time employees are also entitled to leave for these reasons, again at 2/3 pay, on a pro rata basis. Both categories of leave – for illness and for child care – are subject to monetary caps on the leave ($511/day and $5,100 aggregate for personal illness leave reasons, and $200/day and $2,000 aggregate for care provider leave).

These new paid sick leave benefits are available to employees regardless of how long they have been employed, and employers may not require an employee to use other paid leaves provided by the employer before providing these new paid leaves. As with the new FMLA benefit, employees who are health care providers or who employ emergency responders may be excluded from eligibility. Employers will be required to post notices of this benefit for employees, and the Secretary of Labor is expected to issue a model notice soon.

Private employers who grant these new paid leaves are eligible for tax credits to offset these new expenses. State and local governments are not eligible for the tax credits.

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