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New Federal Employee Leave Legislation

On March 18, 2020, two new federal laws were created to significantly expand employee rights to paid leave.  Specifically, beginning April 2, 2020, employers with fewer than 500 employees may need to provide leave to employees in the face of the unprecedented impact of the COVID-19 pandemic.  These new laws are currently set to expire on December 31, 2020. The following is a high level description of two of the primary paid leave protections.  The specific details of how the laws will affect employers are still being finalized, but if you have any questions about how these laws apply to you and your employees, please contact our office.

The Emergency Family Medical Leave Expansion Act (“EFMLEA”)

As the name indicates, the EFMLEA expands upon certain rights and coverages afforded to employees under the traditional Family Medical Leave Act (“FMLA”), both in defining who is eligible to receive benefits and what those benefits provide.  

EFMLEA Eligibility

  • The EFMLEA applies to employers who have fewer than 500 employees, unless otherwise exempted as discussed below.
  • Individual employees who have worked for their employer for 30 days or more are eligible.
  • The EFMLEA benefits are only offered to employees who cannot work, or who cannot telework, because they need to care for a child under 18 years old whose school or place of childcare has closed, or whose childcare is otherwise unavailable, because of the COVID-19 pandemic.  Notably, EFMLEA benefits are not available because employees themselves are sick and instead only apply when childcare is compromised.

I. EFMLEA Benefits

  • Under the EFMLEA, an eligible employee may receive up to 12 weeks of leave to care for their child.
  • The first 10 days of an employee’s EFMLEA leave are unpaid.  Employees can elect to use accrued paid leave time during this 10 day period if they choose, but an employer cannot compel them to do so.
  • After the 10th day, the remainder of the EFMLEA leave must be paid at not less than 2/3 the employee’s regular rate of pay.  Paid leave is limited to $200 per day and capped at $10,000 in total.
  • Similar to regular FMLA, the leave is job protected, meaning that the employee’s position must be available for them to return to at the end of EFMLEA leave.  

III. Exemptions

  • The Labor Secretary may issue regulations exempting businesses with fewer than 50 employees from the EFMLEA when the provision of benefits to employees of those small businesses would jeopardize the viability of the business as a going concern.
  • Employers may exclude employees who are healthcare providers or first responders from the paid sick leave benefits provided.
  • If certain conditions are met, positions at employers of fewer than 25 employees are not necessarily job protected. 

The Emergency Paid Sick Leave Act (“EPSLA”)

The EPSLA mandates up to 80 hours of paid sick leave for employees dealing with the COVID-19 pandemic.

  1. EPSLA Eligibility
  • The EPSLA applies to all employers who have fewer than 500 employees, unless otherwise exempted as discussed below.
  • Benefits are offered to any employee, full-time or part-time, who is unable to work, or unable to telework, and who meets one of the following criteria:

1)      is subject to a federal, state, or local quarantine or isolation order;

2)      has been advised by a healthcare provider to self-quarantine; 

3)      is experiencing COVID-19 symptoms and is seeking medical treatment;

4)      is caring for a quarantined individual; 

5)      is caring for their child whose childcare arrangements have been compromised as described above in the EFMLEA; or

6)      is experiencing any other condition substantially related to COVID-19.

II. EPSLA Benefits

  • Benefits are immediately available, regardless of how long the employee has been employed by the subject employer.
  • Benefits are in addition to whatever benefits the employer already provides.  Employers cannot mandate that previously accrued leave time be used before EPSLA leave is used.
  • Employees using EPSLA leave for any of the reasons described in (1) through (3) above are to be paid at their regular rate of pay.  Under these conditions pay is limited to $511 per day and capped at $5,110 in total.
  • Employees using EPSLA leave to care for another are to be paid 2/3 of their regular rate of pay.  Under these conditions pay is limited to $200 per day and capped at $2000 in total.
  • Part-time employees are entitled to be paid based upon the average number of hours worked during the 6 months prior to taking EPSLA leave.  Part-time employees who have not been employed with the employer for 6 months are entitled to the average number of hours the employee would normally be scheduled over a 2 week period.

III. Exemptions

  • Employers may exclude employees who are healthcare providers or first responders from the paid sick leave benefits provided.
  • The Labor Secretary may issue regulations exempting businesses with fewer than 50 employees from the EPSLA when the provision of benefits to employees of those small businesses would jeopardize the viability of the business as a going concern.

Additional Relevant Information

  • Employers must post notice of the new EPSLA rights in a conspicuous place where similar notices are typically posted.  The Secretary of Labor is to produce a model notice within the next 7 days.
  • Employers cannot and should not retaliate against any employee who elects any benefits under either the EFMLEA or EPSLA.
  • Employers who are required to pay benefits under either the EFMLEA and/or the EPSLA are eligible for refundable tax credits allowed against the employer’s portion of the Social Security tax.  Employers will be reimbursed if their costs under the EFMLEA and/or the EPSLA exceed the Social Security taxes they would owe.

Over the coming days these laws will be further shaped and refined.  Our office will monitor those changes and provide further updates as necessary.  As always, please do not hesitate to contact us with any questions.

Thu Mar 19, 9:11pm

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