Summary of Paid Sick Leave/Family Leave Provisions in Families First Coronavirus Response Act

The information below was compiled by TCTA staff in conjunction with TCTA's Washington, D.C., lobby firm, Van Scoyoc Associates. It was originally published on March 19, 2020, and was updated on March 25, 2020, to add information from the U.S. Department of Education, and again on March 31, to add information from the CARES Act. (Click here for a PDF summary of all three bills related to COVID-19 response and relief.)

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act. The following is a summary of the main provisions of the Act as it relates to paid sick leave through an amendment to the federal Family Medical Leave Act (FMLA) and a new measure requiring the payment of emergency sick leave.

In its simplest form, and with certain exceptions and limitations as explained below, the Act provides that if an employee becomes ill due to COVID-19 or has to take care of someone impacted by the public health emergency, he/she is entitled to two weeks of paid sick leave followed by 10 weeks of unpaid job protected leave (thereby covering the 12 weeks otherwise applicable under the FMLA). If the employee needs to take off more than 10 days in order to care for his/her family member because of the public health emergency (as opposed to the employee being sick themselves) then the employee is entitled not only to the two weeks of paid leave but also an additional 10 weeks of paid leave at two-thirds their salary (subject to some caps). These benefits are to be in addition to whatever leave the employee would otherwise be entitled to receive from his employer.

The new laws apply to both public and private sector employees (with the exception of very large and very small employers, as noted below).

Emergency Family and Medical Leave Act

The Act provides that covered employers must provide up to 12 weeks of job protected FMLA leave for “a qualifying need related to a public health emergency.”

Who is covered?

Covered employers are: (1) private entities (whether taxable or tax exempt) who employ fewer than 500 employees; (2) local and state governments (as well as the federal government) and (3) entities who are party to a multiemployer collective agreement and whose employers pay into a multiemployer plan.

For this provision of the act, a covered employee is an individual who has been employed for at least 30 calendar days, a payroll requirement (this is much lower than the 12 month/1,250-hour tenure requirement otherwise required under the FMLA). The Coronavirus Aid, Relief and Economic Security (CARES) Act added to eligible employees those who were laid off after March 1, 2020, had worked for the employer not less than 30 of the last 60 days prior to the layoff, and who are then rehired.

In what circumstances do these changes apply?

A “qualifying need” is limited to circumstances where an employee is unable to work (or telework) due to a need to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency.

How is the pay calculated?

Unlike under the FMLA, leave lasting longer than 10 days must be paid at two-thirds of the employee’s regular rate of pay. The first 10 days of leave may be unpaid. During this initial ten days of unpaid leave, an employee may elect, but cannot be required, to substitute any accrued vacation leave, personal leave, or medical or sick leave for the unpaid leave. After this initial ten-day period of leave, the employer must provide paid leave. As discussed more fully below, although this part of the Act states that the leave may be unpaid, an employer may nevertheless be required to provide paid leave pursuant to the emergency paid leave provisions.

Paid leave is to be an amount not less than two-thirds an employee’s regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work.

The amount of required pay for leave is capped at no more than $200 per day and $10,000 in the aggregate.

How long does the paid leave last?

Paid leave must continue until either the qualifying condition no longer exists or the employee has exhausted the 12 weeks of leave provided by the Act, whichever is sooner. The employee’s protected leave does not have to be extended beyond the twelve weeks of leave otherwise allowed by the FMLA.

As generally with the FMLA, and subject to certain exceptions, the leave is job-protected (e.g., the employer must restore employees to their prior positions or an equivalent upon the expiration of their need for leave).

Are jobs protected under this law?

The Expansion Act exempts employers with fewer than 25 employees from the FMLA’s requirements to return an employee to his/her former or equivalent position upon return from leave, if the position held by the employee when the leave commenced does not exist due to economic conditions or other factors caused by a public health emergency during the period of leave.

However, the Act requires that such an employer make reasonable efforts to restore the employee to a position equivalent to the employee’s previous position, with equivalent employment benefits, pay, and other terms and conditions of employment. If such efforts fail, the employer must make reasonable efforts to contact the employee if an equivalent position becomes available.

Does this apply to everyone?

Employers who are themselves health care providers or emergency responders have the discretion to exempt health care workers and emergency responders from this provision of the Act. In addition, the Secretary of Labor may exclude health care providers and emergency responders from the definition of employees who are allowed to take such leave. The secretary may also exempt businesses with fewer than 50 employees, if the required leave would jeopardize the viability of their business.

Effective date. This aspect of the Act will take effect on April 1, 2020, and expire on Dec. 31, 2020.

Emergency Paid Sick Leave

In addition to the expansion of the FMLA, the Act requires covered employers to provide emergency paid sick time to certain employees.

Who can receive emergency paid sick leave?

This leave must be provided to an employee who is unable to work or telework because:

1. the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. the employee has been advised by a health care provider to self-quarantine because of COVID-19;
3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
4. the employee is caring for an individual subject or advised to quarantine or isolation;
5. the employee is caring for a son or daughter whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 precautions; or
6. the employee is experiencing substantially similar conditions as specified by the secretary of Health and Human Services, in consultation with the secretaries of Labor and Treasury.

How is the emergency leave pay calculated?

Pursuant to the Act, eligible full-time employees are entitled to two weeks (80 hours) of fully paid time off (up to $511 per day) to self-quarantine, seek a diagnosis or preventive care, or receive treatment for COVID-19. Eligible part-time employees are entitled to fully paid time off (up to $511 per day) for the typical number of hours that they work in a typical two-week period to self-quarantine to seek a diagnosis or preventive care or receive treatment for COVID-19.

In addition, eligible full-time employees are entitled to two weeks (80 hours) paid time off at two-thirds of their regular pay (up to $200 per day) to care for a family member or to care for a child whose school has closed, or if their child care provider is unavailable due to COVID-19. Eligible part-time employees are also entitled to the typical number of hours that they work in a typical two-week period at two-thirds of their typical pay (up to $200 per day) to care for a child whose school has closed, or if their child care provider is unavailable, due to COVID- 19. In effect, this provision picks up the initial ten days of unpaid leave provided for pursuant to the expansion of the FMLA as discussed above.

Employer prohibitions

• An employer may not require, as a condition of providing paid sick time under this Act, that the employee search for or find a replacement employee to cover the hours during which the employee is using paid sick time.
• An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time under this Act.
• An employer who violates the paid sick leave provisions of this Act will be considered to be in violation of the Fair Labor Standards Act and subject to the penalties under the FLSA.
• An employer may not discharge, discipline, or in any other manner discriminate against any employee who takes leave in accordance with this Act and who has filed any complaint or instituted any proceeding related to this Act (including a proceeding that seeks enforcement of this Act), or who has testified or is about to testify in any such proceeding. An employer who willfully violates these provisions will be considered to be in violation of the Fair Labor Standards Act and subject to its penalties.

Does the employee have to use up other leave first?

Employers may not require an employee to use other paid leave provided by the employer to the employee before the employee uses paid sick time provided for by the Act.

Who is excluded from the requirements?

The Secretary of Labor is authorized to: (a) exclude certain health care providers and emergency responders from the definition of employee by, among other things, allowing them to opt out; (b) exempt small businesses with fewer than 50 employees from the requirement that the employer provide paid leave for an employee who must care for a son or daughter due to the COVID-19-related loss of child care when the imposition of such requirements would jeopardize the viability of the business as a going concern; and (c) ensure consistency between the paid family and paid sick standards and tax credits.

When will this leave be available?

Unlike the 30-day payroll requirement as set forth in the FMLA portion of the Act, employees are immediately eligible for this leave. In other words, the full allotment of paid sick time provided for by the Act must be available for immediate use by an employee.

The emergency paid sick time provided by the Act does not carry over from one year to the next and an employer is not obligated to pay sick time not used at the time of an employee’s termination, resignation, or retirement.

Effective date. The Act will take effect on April 1, 2020, and it expires on Dec. 31, 2020.

How Emergency FMLA and Emergency Paid Sick leave work together

The U.S. Department of Education released a Q&A answering questions related to the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provisions of the Families First Coronavirus Response Act (FFCRA) . Below are some of the most relevant portions for educators.

As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?

It depends on your normal schedule as well as why you are taking leave. If you are taking paid sick leave because you are unable to work or telework due to a need for leave because you (1) are subject to a federal, state or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, you will receive for each applicable hour the greater of:

• your regular rate of pay,
• the federal minimum wage in effect under the FLSA, or
• the applicable State or local minimum wage.

In these circumstances, you are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

If you are taking paid sick leave because you are: (1) caring for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, you are entitled to compensation at two-thirds of the greater of the amounts above.

Under these circumstances, you are subject to a maximum of $200 per day, or $2,000 over the entire two-week period.

If you are taking expanded family and medical leave, you may take paid sick leave for the first 10 days of that leave period, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer’s policy. For the following 10 weeks, you will be paid for your leave at an amount no less than two-thirds of your regular rate of pay for the hours you would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, you will not receive more than $200 per day or $12,000 for the 12 weeks that include both paid sick leave and expanded family and medical leave when you are on leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?

No. You may take up to two weeks—or 10 days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.

If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both — how do they interact?

You may be eligible for both types of leave, but only for a total of 12 weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first 10 workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first 10 workdays have elapsed, you will receive two-thirds of your regular rate of pay for the hours you would have been scheduled to work in the subsequent 10 weeks under the Emergency and Family Medical Leave Expansion Act.

Please note that you can only receive the additional 10 weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?

No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.

Is all leave under the FMLA now paid leave?

No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.