Leave Laws in the Age of COVID: What Employers Need to Know

September 21, 2020


When the Families First Coronavirus Response Act (FFCRA) took effect in April of this year, many employers were dealing with the crisis of sending employees home to work. The paid leave provisions in the FFCRA were critical. These provisions remain important and perhaps have new implications this fall as employees return to brick-and-mortar locations and their children return to learning.


The FFCRA expires December 31, 2020, unless Congress chooses to extend its provisions. It applies to all public employers and to private employers with fewer than 500 employees. The FFCRA provides two types of paid leave for absences related to COVID-19.


Emergency Paid Sick Leave


The Emergency Paid Sick Leave (EPSL) provisions of FFCRA are in addition to any leave an employer already provides. “Employers cannot require staff members to use their other paid leave first,” Labor & Employment attorney Mary Funk says. “If someone has paid time off available and they’re also entitled to EPSL, they are entitled to take the 80 hours of EPSL first. This is a cumulative leave, meaning 80 hours total between April 1 and December 31, no matter how many different times it may be needed.”


EPSL applies no matter how long an employee has been working for the employer. It provides full-time employees with a total of 80 hours of time off between April 1 and December 31, 2020. For part-time employees, the amount is proportional based on average hours worked in a two-week period.


According to the provisions an employee must meet one of six qualifying reasons for EPSL.


    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 due to concerns related to COVID-19;
    3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    4. The employee is caring for an individual who is subject to an order as described in subparagraph (A) or has been advised as described in paragraph (B);
    5. The employee is caring for his or her son or daughter if the school or place of care has been closed or the childcare provider is unavailable due to COVID-19 precautions; or
    6. 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.”


Employers are entitled to apply for a tax credit for EPSL provided to employees who need leave for a qualifying reason. While employers do not have to submit documentation to the IRS to obtain the tax credit, if audited, however, employers should be able to show that employees who received EPSL were entitled to it. If employers can’t prove the employees fit into a qualifying category, the tax credit could be denied.


“When Congress enacted the FFCRA, it couldn’t possibly have anticipated all the things that we’re all dealing with now.  It’s very important that employers understand what fits into the FFCRA and what doesn’t." — Mary Funk


The changing environment of the pandemic has created holes in the law. That creates tricky situations for employers.


For example, an employee who has been advised by a healthcare provider to quarantine due to concerns related to COVID-19 or who is experiencing symptoms and seeking a medical diagnosis is entitled to 80 hours of full pay up to the cap of $511 per day ($5,110 aggregate). If an employee needs to miss work to care for someone in those situations, the pay is at two-thirds the regular rate, not to exceed $200 per day ($2,000 aggregate).


But, the law does not provide EPSL to an employee who is sent home by an employer because the employee reports an exposure to someone who may be positive for COVID-19. Because the employee is asymptomatic and hasn’t been advised by a healthcare provider to stay home, the employee does not qualify for EPSL under any of the six categories. This means the employee may use PTO or remain home unpaid during the duration of a quarantine. “While an employer can always provide more benefits to employees than the law requires, employers must know the tax credits will not be available for paid leave under that circumstance. Treating employees consistently is paramount,” Funk says.


Emergency Family & Medical Leave Act


The Emergency Family & Medical Leave Act (EFMLA) applies to any employer with 500 employees or fewer even if it is not otherwise covered by the FMLA. To be eligible for EFMLA, employees have to have been employed for at least 30 calendar days. Unlike the traditional FMLA, there’s no hour requirement, so even part-time employees who work fewer than 1,250 hours are entitled to EFMLA. The EFMLA allows an employee to take leave to care for a child whose school or place of care is closed or unavailable due to COVID-19. 


EFMLA is unpaid leave for the first 10 days, but the 80 hours of paid EPSL may be used during this period of time. The remaining 10 weeks of leave would be at two-thirds pay and subject to a $200/day cap. An employer can also obtain tax credits for this leave.


Both EPSL and EFMLA permit intermittent leave, so long as both the employee and the employer agree. The leave doesn’t have to be used as a block of time. An employee might use some days or weeks now and use remaining time in the future, for example. Or two days a week when their children are remote learning from home. “For the EFMLA, I think it’s going to be critically important that we pay attention to this intermittent use as children are returning to school,” Funk says.


As schools navigate COVID-19 challenges, employers face decisions related to at-home work, employee productivity, and leave. “It’s going to call on us to be flexible because it may vary day-to-day,” Funk says. “It certainly is going to vary between school districts and employees and even between children in the same home.”


Mandated online learning versus a parental choice for online learning also affects the analysis for EFMLA eligibility. If the school or state mandates at-home or online learning for part or all of a week, the employee is entitled to leave for those days. However, it is likely that most employees are going to be out of leave before the end of the year. Employers should consider reasonable options. Can employees work from home? Can they be productive? “It’s important that everybody understand that this is temporary and that we do need to be flexible,” Funk says. If telework is an option, and employees can work from home without needing to provide constant child care or school instruction to remote learners, employers may find it beneficial to develop a temporary work-from-home plan.   


If a parent opts for online learning when in-person learning is available, they are not eligible for EFMLA. Employers should think about whether teleworking is reasonable, efficient, and productive, making sure it’s temporary. “In those situations, if the employee is not able to telework or feels they can’t reasonably telework and be efficient, the employee needs to use their own PTO or vacation for those days,” Funk says. “That’s the difference between mandating and opting.”


There may be days when employees are able to work in the brick-and-mortar location, and days when they are not. “Both the employer and employee have to agree, but in my opinion, it seems to make sense that, if you have employees who indeed can efficiently and productively telework, that may be an employer’s best option,” she says. “I think it’s beneficial to have the flexibility to provide that intermittent leave.”


Another issue is quarantining.  The school may mandate that a student quarantine based on an exposure at school, even if the student is asymptomatic and tests negative. The school is then “unavailable” for that student and the employee is entitled to EMFLA, as discussed above.


Providing emergency paid leave to employees is above and beyond what most employers even dreamed of doing before April 1. Employers must show that employees are entitled to leave, Funk says. “The employee has a role to play, and the employer has a role to play,” she says.


If an employee is quarantined, having symptoms, or waiting for a diagnosis, the employer needs documentation from the testing provider or a healthcare provider that demonstrates the employee fits the criteria. For child care issues, the employer needs documentation from the day care. That can be an email sent to parents or a screenshot from the provider’s website saying they’re closed. The employee also needs to show there is no other suitable provider. “I do not think that means that you need leave your children with someone who you wouldn’t otherwise trust,” Funk says. “It does mean that the employee has explored the options and can state in writing  that they can’t find another suitable provider.”


Proper processes and documentation ensure employers pay employees appropriately and receive the tax credits. “Your existing HR software or procedures may not account for this kind of thing,” Funk says. “You need to make sure you have forms and policies that you are following to make sure you are appropriately paying people.”


Your Nyemaster Labor & Employment attorney can assist you with analyzing specific employee situations. Your attorney can also help you establish procedures to document eligibility for EPSL and EFMLA.