Coronavirus (COVID-19) Update

March 31, 2020

Department of Labor (DOL)
The DOL has released yet more FAQs (see #38-59) regarding the Families First Coronavirus Response Act (FFCRA). Some pertinent information:

Who’s eligible? The Emergency Family and Medical Leave Expansion Act (EFML) and Emergency Paid Sick Leave Act (EPSL) both use the employee definition as provided by the Fair Labor Standards Act (FLSA). All U.S. (including Territorial) employees who meet the FLSA employee definition are eligible. This includes full-time and part-time employees as well as joint employees working at an employer’s worksite temporarily and/or through a temp agency.

IMPORTANT NOTE: Employees are eligible for paid sick leave regardless of length of employment while employees must have been employed for 30 calendar days in order to qualify for expanded family and medical leave. As we noted in our previous newsletter, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) signed into law last Friday by President Trump, extends paid leave under EFML to those who meet the following criteria:

  • Were laid off after March 1, 2020
  • Worked for the employer for at least 30 of the last 60 days, and
  • Were rehired by the employer

Who qualifies as a “son or daughter”? Under the FFCRA, a “son or daughter” is your own child, which includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis. In addition, a “son or daughter” is also an adult son or daughter who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.

What are my reinstatement rights? Both Acts require employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave. However, an employee is not protected from employment actions, such as layoffs, that would affect the employee regardless of whether leave was taken. Employers must be able to demonstrate that an employee would have been laid off even if the employee had not taken leave.

How much leave can I take? Eligible employees are entitled to paid sick leave under the EPSL regardless of how much leave has been taken under the FMLA. The amount of EFML available depends on the amount of leave already taken during the 12-month period that an employer uses for FMLA leave. For example, if an employee used 6 weeks previously, they would have 6 weeks available under EFML. Conversely, if an employee uses 6 weeks of EFML, they would have 6 weeks remaining for another FMLA-qualifying reason. All in all, total FMLA leave may not exceed 12 workweeks in the 12-month period. As a reminder, EFML is only available until December 31, 2020.

IMPORTANT NOTE: Paid Sick Leave under the EPSL is in addition to other leave provided under Federal, State, or local law; an applicable collective bargaining agreement; or the employer’s existing company policy.

Who is a “health care provider? A licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA may provide advice to self-quarantine (due to concerns related to COVID-19) that can be relied on as a qualifying reason for paid sick leave.

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