In one of the first pieces of legislation passed in response to the COVID-19 pandemic, the U.S. Congress created two new types of leave for individuals who are dealing with COVID-19-related issues. The Families First Coronavirus Response Act included both the Emergency Family Medical Leave Act and the Emergency Paid Sick Leave Act. Both provide some amount of paid leave. These acts, as of this magazine’s publication date, shall remain in effect until Jan, 1, 2021, and, therefore, could be a resource for employees going back to work in the fall. Because these leaves work in concert, it’s important to understand both of them.
Emergency Family Medical Leave Act
The Emergency Family Medical Leave Act provides 12 weeks of leave for individuals who are unable to work or telework due to the need to care for a son or daughter whose school or daycare has closed because of COVID-19. The first two weeks of this leave, essentially the first 10 days, would be unpaid, though the individual may use either his or her own accrued leave or some of the Emergency Paid Sick Leave Act leave to cover these days, as addressed below. The remaining 10 weeks would be paid at the lesser of 2/3 of the individual’s daily rate or $200, up to a cap of $10,000.
The definition of son or daughter is very broad and covers almost anyone under the age of 18 whom the individual has parental or guardianship responsibilities for. The definition includes biological, foster, or adopted children, stepchildren, the child of a domestic partner, a legal ward, or the child of a person acting in the parent role. This could include a grandmother or other person acting as a parent.
Unlike the FMLA, which has some extensive eligibility requirements, the only requirement for an employee to be covered by this new type of leave is that he or she be employed for 30 days.
Emergency Paid Sick Leave Act
Unlike the EFMLA, which covers only one specific reason for leave, the Emergency Paid Sick Leave Act provides coverage based on six potential reasons for needing leave.
1. The individual is subject to a quarantine or isolation order related to COVID-19.
2. The individual has been advised by a health care provider to self-quarantine due to COVID-19.
3. The individual is experiencing COVID-19 symptoms and seeking a medical diagnosis.
4. The individual is caring for someone who is subject to a quarantine or isolation order, or who has been advised to self-quarantine by a health care provider.
5. An EFMLA eligible reason (i.e. inability to work or telework due to the need to care for a son or daughter whose school or daycare has closed)
6. Any other substantially similar condition specified by the Secretary of Health and Human Services (Currently there are no conditions under this exception.)
EPSLA leave is also paid, though the amount of payment differs based on the reason for leave. If the reason for leave is related to the individual (i.e. reasons 1-3), the amount of payment is the lesser of the individual’s daily rate or $511, with a total cap of $5,110. For the reasons for leave that are related to caring for another individual (i.e. reasons 4-6), the amount of payment is the lesser of the 2/3 of the individual’s daily rate or $200, with a total cap of $2,000.
EPSLA leave is intended to be very employee friendly. Therefore, it is in addition to any and all other types of leave previously available to the employee, and the employee cannot be required to exhaust it before any other type of leave. This means that if an individual needs to take EFMLA leave and would like to have the first 10 days paid, then he or she can decide to use EPSLA leave or other eligible sick or vacation leave. The employer cannot require otherwise. If an individual is caring for a child who is home due to a school- or daycare-related closure, he or she could combine the EPSLA and EFMLA leaves to get a full 12 weeks off with pay.
In addition to these new types of leave, COVID-19 situations may also lead to individuals needing to enforce their rights under the Family Medical Leave Act or American’s with Disabilities Act. If you have questions or concerns about a situation affecting you, contact us at coronavirus@mnea.org. We will find answers and get back to you as soon as possible.
It is important to bear in mind that even though Congress has provided some of these supports for people dealing with COVID-19, it isn’t enough to support the education employees and students going through this crisis. NEA continues to advocate for support through additional types of leave, expanding unemployment protections, and working to lessen the load of student debt. Stay in the loop with MNEA’s and NEA’s ongoing advocacy efforts at www.mnea.org/coronavirus.
by Vincenzo Iuppa, Associate general counsel
Something Better, summer 2020