Coronavirus and Your Employment: Frequently Asked Questions about COVID-19 and the Workplace

The Families First Coronavirus Response Act (H.R. 6201), which takes effect on April 2, 2020, contains two main provisions that address employee absences related to the Coronavirus –the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”).   As of right now, these laws remain in effect until December 31, 2020.

Our Ohio employee rights attorneys are available to answer workers’ questions in detail online or over the phone at (614) 610-9755. Here are the basics that everyone should know.

Q: Who can take emergency paid sick leave under the Emergency Paid Sick Leave Act (EPSLA)?

The EPSLA makes up to 80 hours of paid sick leave available to full-time employees of employers who have less than 500 employees and fall into any of the following categories:

• A current diagnosis of COVID-19 or actively seeking medical treatment/testing for a suspected COVID-19 diagnosis/symptoms;
• Quarantine (including self-quarantine), at the instruction of a health care provider, employer, or government official, to prevent the spread of COVID-19;
• Caring for another person who has COVID-19, who has been instructed by a doctor to self-isolate and/or who is under a quarantine related to COVID-19; or
• Caring for a child or other individual who is unable to care for themself due to the COVID-19-related closing of their school, child care facility, or other care program.
  

Q: How much compensation is paid?

Full time employees are entitled to 80 hours of paid leave at their regular hourly or salaried rate of pay.  Hours of available paid emergency sick leave are prorated for part-time employees, and employers cannot make taking leave conditional on finding someone to cover shifts or handle responsibilities.  Part-time employees are entitled to be paid for the number of hours that they worked on average over the prior two-week period.

Note that emergency sick leave is only available to employees whose health has made them unable to work or who cannot report to their workplace because of their own health or caregiving responsibilities. Individuals who are able to do their jobs from home cannot take sick leave under this coronavirus response law.

Q: Who is now eligible for leave under The Emergency Family and Medical Leave Expansion Act (EFMLEA)?

Employees who have worked for their current employer for 30 consecutive calendar days now have rights to request and use leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA).  Typically, an employee must have either worked for the employer for 12 months or have worked 1,250 hours to qualify for FMLA leave.  Under the EFMLEA, this requirement is waived.

The Expansion Act covers any employer that has 500 employees or less, which is different than the normal standard for FMLA leave.  All employers with 500 or less employees must comply.  Normally, FMLA applies to employers that have 50 or more employees in a 75-mile radius.  The EFMLEA waives this requirement as well and this is not required to take leave under the EFMLEA.

Employees can take leave under the EFMLEA done for one of the following reasons:

• Leave is available when an employee is unable to work or telework due to the need to care for a son or daughter under the age of 18 or when the child’s school or day care is closed due to the coronavirus.

The new legislation is silent on the type of documentation needed to approve this type of request.  For now, employees should submit a request in writing, explaining the need for leave.

Q: Will I receive full pay while taking leave under the EFMLEA?

The first 10 days of EFMLEA leave is unpaid.  After 10 days, the leave is paid.  This does not mean that an employee cannot use PTO/sick leave for the first 10 days in order to be paid.  If it is available to you, you can use it to be paid for the first 10 days of this leave.  The employer cannot require you to use PTO/sick leave during this first 10 days, however.

If an employee qualifies for both EFMLEA and Emergency Paid Sick Leave, described above, the employee may use the Emergency Paid Sick Leave at the same time as the first 10 days of EFMLEA leave that would normally be unpaid.

After the 10-day unpaid leave period expires, the employee will be paid two-thirds of his or her regular rate under the Fair Labor Standards Act, multiplied by the number of hours the employee would normally work. If this is unpredictable, the employer should look at the prior six-month period to determine the average number of hours worked per week prior to the leave.

Paid leave under the EFMLEA will be a maximum of $200 per day and $10,000 in total for the duration of the leave. After the $10,000 maximum is reached, the remainder of the leave, up to 12 weeks, is unpaid.

Q: Can my employer force me to take unpaid FMLA leave instead of paid sick leave?

No.

Q: Does my employer have to take me back after I use emergency paid sick leave or family leave?

Yes, the employer will be required to return the employee to work at the end of the leave, just as it would if the employee took normal FMLA leave.

The only exception to this requirement is for employers with fewer than 25 employees under the following conditions:

• The employee’s position no longer exists because of economic or operating conditions caused by the public health emergency; AND
• The employer makes reasonable efforts to restore the employee to an equivalent position with equivalent pay, benefits, and terms and conditions of employment for a one-year period. “Reasonable efforts” include the duty to contact the employee when an equivalent position becomes available over this one-year period.

Q:  How long is emergency paid sick leave and expanded FMLA leave available under the coronavirus response law?

The Families First Coronavirus Response Act remains in effect until Dec. 31, 2020.