The Families First Coronavirus Response Act (FFCRA) went into effect on April 1, 2020 and will stay in effect until December 31, 2020. The FFCRA was a step in the right direction toward assisting workers impacted by COVID-19, but it does not go far enough. FFCRA contains two provisions that are potentially beneficial for employees- the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (FMLEA).
First, the EPSLA is available to employees who have been working for an employer for at least 30 calendar days and who are employed by an employer with fewer than 500 employees. The EPSLA affords 80 hours of paid sick leave to employees under the following circumstances:
- The employee is under a federal, state, or local quarantine or isolation order because of 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 meets one of the first two conditions, above;
- The employee is caring for a son or daughter whose school or “place of care” is closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions, or;
- 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.
Under EPSLA, full-time employees are entitled to 80 hours of sick leave, and part-time employees are entitled to the average number of hours the employee works over a two-week period. Additionally, the paid sick leave must be: (1) paid at the employee’s regular rate, not to exceed $511 per day and $5,110 in total for qualifying conditions under (1), (2), and (3) above, or (2) paid at two-thirds the employee’s regular rate, subject to a maximum of $200 per day and $2,000 in total for qualifying conditions (4), (5), and (6) above. Employers who do not comply with the pay requirement will be violating the Fair Labor Standards Act (FLSA). Fortunately, employers are also prohibited from mandating that an employee use other sick time provided by the employer prior to using the paid sick time provided for by the Act, so employees should not hesitate to use the Emergency Paid Sick Leave if it is truly necessary.
Second, the FMLEA is available to employees who are caring for a son or daughter whose school or “place of care” is closed, or the childcare provider of such son or daughter is unavailable due to COVID-19 precautions. To qualify for FMLEA, the employee must be working for an employer with less than 500 employees and have been working for the employer for at least 30 calendar days. FMLEA expands upon traditional FMLA by providing paid leave for 10 weeks on top of the two weeks of paid Emergency Sick Leave for eligible employees. If the employee is eligible under both EPSLA and FMLEA, the employee would receive paid sick leave at their normal pay rate (up to a maximum of $511 per day) for the first two weeks and then paid leave under FMLEA at two-thirds rate for the remaining leave. The total amount of leave permitted under EPSLA and FMLEA combined is 12 weeks. The 10 weeks of FMLEA leave would count against the employee’s 12-week per 12-month period of leave entitled under FMLA, but the two weeks of paid sick leave would not. Employees who take leave under FMLEA or FMLA are protected from an employer interfering with their rights to take leave and retaliation imposed as a result of taking or requesting to take the leave.
It is important, however, to be sure to provide proper documentation to employers when utilizing these benefits. When taking leave under FFCRA, an employee must provide employers with his or her name, the date(s) for which the leave is requested, the reason for the leave, and an oral or written statement that the employee is unable to work because of the qualifying reason. The employee must also provide: (1) the name of the issuing entity if the leave is requested because of a government-issued quarantine or isolation order; (2) the name of the health care provider if the leave is requested because of a recommended quarantine; or (3) the name of the son or daughter; the name of the school, place of care, or child care provider; and a representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave under FMLEA or EPSLA, if the leave is requested to care for a son or daughter who no longer has child care due to COVID-19 precautions.
Fortunately, the employer is also required to continue the employee’s group health care coverage on the same basis as if the employee were still working while the employee is on leave. If this employee fails to pay his or premium during this time, the employer is still obligated to reinstate the coverage when the employee returns to work, with no conditions attached.
FFCRA Leaves Behind Large Swaths of Employees so More Congressional Action is Needed
While the FFCRA certainly has provided some relief for employees faced with having to take off work due to COVID-19 related concerns and the financial struggle that comes along with it, it also leaves massive gaps in protections.
For starters, the FFCRA only applies to employers with fewer than 500 employees. This means that if someone works for large banks, grocery store chains, or other large companies such as Amazon, they are not entitled to the FMLEA or the EPSLA under the FFCRA. This is odd as it seems as though large companies would be best suited to continue to pay their employees during a time when the economy is deeply suffering, and it is troubling since large companies employ a significant amount of the population.
Furthermore, employers with fewer than 50 employees can be exempt from the obligation to provide FMLEA leave or paid leave due to closing if an authorized officer of the company represents that “(1) the leave would cause the company’s expenses and financial obligations to exceed available business revenues and cause the small business to cease operating at a minimal capacity; (2) the absence of the employee requesting leave would put the company’s operational or financial health at risk because of the employee’s specialized skills, knowledge of the business, or responsibilities; or (3) there are not enough employees with the requisite skills who are available to perform the work that the employee performs and that the employee’s labor or services are needed for the small business to operate at a minimal capacity.” This small business loophole is vulnerable to abuse because it is unlikely the US Department of Labor will look to verify whether those conditions are actually met.
Additionally, health care providers and emergency responders are specifically excluded from coverage under the FFCRA. While health care providers and emergency responders are clearly desperately needed during this time, they are also the most at risk of being exposed to and contracting the disease. Preventing them from taking paid leave under FFCRA is a slap in the face considering all of the difficult and life-threatening work they are performing.
Similarly, when it comes to FMLEA, the people who have been diagnosed or are in the process of being diagnosed don’t qualify for the paid leave under that provision as it only applies to those “caring for a son or daughter whose school or “place of care” is closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.” Thus, the people who have been diagnosed or are in the process of being diagnosed would only be eligible for the two weeks of emergency sick leave, even though they may be unable to recover or even get tested during that time.
Those falling through the cracks have a couple of options, though none are presently promising. If you do not qualify for FMLEA or EPSLA, you may qualify for FMLA leave, but that leave is unpaid. While the right to be restored to your previous position is beneficial, FMLA leave does not address the financial hardship that comes with being out of work due to COVID-19. Moreover, in order to be eligible for FMLA, an employee must have worked for an employer for at least a year, for a minimum of 1,250 hours, and the employer must have 50 or more employees. As a result, most part-time workers and those with less than a year of service have no right to the unpaid leave provided by the FMLA.
Another law that may provide some protection for employees who have to miss work due to COVID-19 is the Americans with Disabilities Act (ADA). It is not clear whether COVID-19 is covered under the ADA. Typically, a fleeting illness, like the flu, is not considered a disability under the ADA, so there is a risk that COVID-19 would not be either. However, Congress could amend the ADA to cover COVID-19. If the ADA was amended to explicitly cover COVID-19, then employers would be required to provide infected or recovering employees with “reasonable accommodations,” which would almost certainly include leaves of absences to recuperate. Only employers with fewer than 15 employees are exempted from the ADA. Accordingly, this simple amendment would instantly extend leave (albeit unpaid) for millions of employees left by the wayside by the FFCRA.
Contact your Representatives and urge them to amend:
- the EPSLA and FMLEA to cover employers with greater than 500 employees and all health care workers and first responders;
- the FMLEA to also cover employees who have been diagnosed or are in the process of seeking medical treatment for COVID-19, as well as employees caring for family members with COVID-19; and
- amend the Americans with Disabilities Act to explicitly cover those with COVID-19 or other ailments caused or exacerbated by COVID-19.
If you do not know who your Congressman is, you can find that information here. For those of you who live in North Carolina, please reach out to your Senators, Richard Burr and Thom Tillis.