Under the federal Family and Medical Leave Act, eligible employees who work for employers that are covered by the law can take as much as 12 weeks of unpaid leave each year to care for their serious health conditions or the health conditions of their family members. This leave is unpaid, but the workers’ jobs are protected when they take approved leave. The coronavirus pandemic has prompted the government to act. A bill passed by the House of Representatives would expand the protections of the FMLA to workers who are forced to take leave related to COVID-19. President Trump has promised to sign this bill, meaning that it should soon be enacted.
How the bill expands FMLA rights
The Families First Coronavirus Response Act expands the workers who qualify for FMLA leave. This bill will require employers with 499 or fewer workers to offer FMLA leave for coronavirus-related reasons to any employee who has worked for the employer for 30 or more days and needs to stay home with his or her minor child because of a coronavirus-related closure of the child’s school or daycare facility. Unlike regular FMLA leave, this leave will be paid at a rate of 2/3 the employee’s regular rate of pay, up to a maximum of $200 per day and $10,000 in the aggregate.
The bill also broadens who qualifies as a family member to include grandparents, senior citizens, grandchildren, the employee’s next of kin, and children with special needs. Spouses include domestic partners.
Employees who take coronavirus-related leave have the same job-protection rights that they do under the FMLA. They also have the right to be protected from retaliation for taking leave under the law.
While the emergency FMLA expansion applies to employers with 499 or fewer workers, employers with less than 50 employees may be exempted from the requirement to offer emergency FMLA leave by the federal Department of Labor if it would jeopardize the survival of their business. Certain health care providers and emergency responders may also be excluded from eligibility for this type of leave.
Temporary mandate for emergency paid sick leave
This bill also requires employers to offer paid sick leave for employees for up to 80 hours in the following situations:
- The employee is required to isolate himself or herself because of being diagnosed with COVID-19.
- The employee needs to get a medical diagnosis because of exhibiting symptoms of COVID-19.
- The employee needs to quarantine or self-isolate to follow a public official’s order because of the employee’s exposure to or symptoms of coronavirus.
- The employee needs to stay home to care for a family member because of the family member’s quarantine after being exposed to the virus or because he or she is showing symptoms of the disease.
- The employee needs to stay home with his or her child because of a school or daycare closure.
Employees who are eligible for leave because of meeting one of these guidelines are entitled to receive emergency paid sick leave. Full-time workers are eligible for 80 hours of this type of paid leave. Part-time workers are eligible for two weeks’ worth of their average hours of paid leave. Workers whose hours vary will be entitled to receive the average of the hours that they have worked per week as calculated over the previous six months. When workers take leave, they must be paid their full hourly rate, up to a maximum amount. This paid leave benefit expire on Dec. 31, 2020.
Workers who need to remain home after the two weeks of emergency paid leave may be eligible for either standard FMLA or the emergency expanded FMLA if they meet the eligibility requirements.
Employees who miss work because of non-qualifying reasons might be eligible for unemployment compensation benefits during the first week that they are absent. For example, if an employer sends an employee home after the employee demonstrates flu-like symptoms, the employee might be eligible for unemployment benefits.
This bill establishes a floor instead of a ceiling for benefits. Employers that already offer paid sick leave to their employees will not have a reduction of their obligation to provide paid leave under the law. If an employee exhausts his or her paid sick leave under the law, he or she will still be eligible for any paid sick leave that is provided by the employer on top of the federally mandated leave. Employees will not be able to carry any of the federally mandated paid sick leave to 2021, however.
Employers will not be allowed to change their existing paid sick leave policies to try to get around the new law. If the bill is signed into law, employers who pay sick leave to their employees under the law will be eligible for certain tax credits.
Get help from the attorneys at Swartz Swidler
If you have symptoms of coronavirus disease or have been exposed to the virus and need to take leave, this new bill should offer additional protection to you. If your employer retaliates against you for taking coronavirus-related leave or refuses to allow you to take it, contact the attorneys at Swartz Swidler to schedule a free consultation by calling us at 856.685.7420.
