Editor’s Note: The U.S. Department of Labor on March 24 advanced the effective date of the Emergency Family Medical Leave Expansion Act and Emergency Paid Families Leave Act to April 1, 2020. At the time of the podcast recording, the effective date was April 2. The effective date mentioned in this article has been updated to reflect this change.
The federal government passed a coronavirus emergency relief package on March 18 that provides protected paid leave to workers impacted by COVID-19. In Episode 54 of The Workplace podcast, CalChamber President and CEO Allan Zaremberg is joined by employment law expert Benjamin Ebbink and CalChamber Executive Vice President Jennifer Barrera to discuss what employers should know about the new Emergency Paid Sick Leave Act, and Emergency Family and Medical Leave Expansion Act.
Criteria
The Emergency Paid Sick Leave Act, and Emergency Family and Medical Leave Expansion Act are temporary measures that will take effect on April 1 and will sunset on December 31, 2020. The measures apply to employers with fewer than 500 employees—employers with more than 500 employers are not covered, Ebbink, partner at Fisher Phillips law firm, explains.
Medical test results are not needed to qualify for either leave, but each leave has different criteria.
Paid Sick Leave
To qualify for the Emergency Paid Sick Leave Act (EPSLA), Ebbink says, a worker must meet one of following criteria:
1) Be subject to a federal, state or local quarantine or isolation order related to COVID-19;
2) Advised by a health care provider to self-quarantine due to COVID-19 concerns;
3) Experience COVID-19 symptoms and seek medical diagnosis;
4) Care for an individual (not just a family member) subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
5) Care for a child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
6) Experience 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.
This leave provides employees with 80 hours of protected paid sick leave. The rate of pay depends on the reason for the leave. If a worker is taking leave for self-care (criteria 1–3 above), the worker will be compensated at the regular rate of pay (subject to pay caps). If the leave is to care for someone else (criteria 4–6 above), compensation will be at two-thirds the regular rate of pay (subject to pay caps).
Emergency Family and Medical Leave Expansion Act
To qualify for the Emergency Family and Medical Leave Expansion Act (EFMLA), an employee must have worked for the employer for 30 days or longer.
The EFMLA provides up 12 weeks of protected leave to an employee, who is unable to work or telework, to care for their child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency, Ebbink explains.
The first 10 days of the leave is unpaid, but during the 10-day period, an employee may elect to substitute any accrued paid leave (like vacation or sick leave) to cover some or all of the 10-day unpaid period. After the 10-day period, the employer generally must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled, Ebbink says.
Tax Credit Available
Due to the outbreak and quarantine measures across the country, many businesses are feeling extreme financial strain and some cannot afford to keep employees on the payroll. Ebbink reiterates that the federal job protections will start on April 1 and will apply to those defined as an “employee.” At the moment, the laws are not retroactive.
The federal government will reimburse businesses impacted by the EFMLA and EPSLA by providing a quarterly tax credit, Ebbink says.
Essentially, the government will ultimately pick up the tab, but employers will have to shoulder the upfront costs initially, Zaremberg explains.
Ebbink adds that the U.S. Treasury is looking at the issue and considering alternatives for immediate economic relief to pay for the paid leave package. Congress also is expected to pass the third stage of an economic stimulus package that will help businesses afford the EFMLA and EPSLA.
California Legislation
California does not have a counterpart to the new EFMLA yet; however, Assemblymember Ash Kalra (D-San Jose) has introduced a bill that proposes to provide an extended leave of absence for employees impacted by the virus, Barrera explains.
The state Legislature is not expected to return from recess until April 13, so we will all have to wait and see if a California-specific leave will be introduced and passed, she added.
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Editor’s Note: The U.S. Department of Labor on March 24 advanced the effective date of the Emergency Family Medical Leave Expansion Act and Emergency Paid Families Leave Act to April 1, 2020. At the time of the podcast recording, the effective date was April 2. The effective date mentioned in this article has been updated to reflect this change.
