Your Leave of Absence Rights Under The New Families First Coronavirus Response Act - A Clear Guide

The Family First Coronavirus Response Act gives employees protections for leaves of absence to account for quarantines and school closures. The Act was signed into law on March 18, 2020 and went into effect April 1, 2020. It will sunset (expire) on December 31, 2020.

This was a much needed bill as we in legal limbo. Many employees were sent home to self-quarantine and were not be able to telework. Many parents were expected to show up to work even though their kids were home. Many parents were asked to work remotely with kids at home. In addition to feeling the stress of the impeding virus, we were worried about our job security and we knew it would be hard to find another job during economic turmoil. We also need our jobs because we need health care, especially during a health crisis. We were up at night worrying about financial or medical bankruptcy, access to care, keeping our kids' education on track, ensuring our elderly parents are safe, trying to keep our arguments with our partners to a minimum, and not losing our damn minds. It's a lot!

Due to the school closures, this crisis is affecting parents disproportionately as it's extremely hard to remain a competent and committed employee when you're worried about bringing the virus home to your kids or when you have little ones slamming their sticky hands on your computer, erasing all of your work product. The physical, financial and emotional pressure on most of us has never been more intense. This law should alleviate some of your stress.

The health of you and your family is more important than your employer's frustration that you are not available to meet organizational needs. When you know your rights, you can care for your family without the compounding anxiety of fearing job loss.

You should know that some of the federal and state laws that were already in effect, such as the FMLA, may already apply to provide some leaves and protect some of our jobs, but there are a lot of us who are not eligible and are falling through the cracks. This new law gives sweeping paid leaves of absence right to all Americans.

Are you ready to go to law school? Get your legal pads out an Let's take a look at your rights:

What Does the Law Say?

In this article, I will focus on emergency sick leave and emergency family leave (the FMLA expansion). The emergency family leave gives parents a job-protected 12 weeks leave of absence during school closures. There are other protections too, such as food stamp expansion, that I will not cover. The emergency sick leave gives employees 2 weeks paid sick leave for school closures, or coronavirus-related treatment or precautions.

1. Emergency Sick Leave

Employees who cannot work or telework can take paid sick leave in the following scenarios:

(1) the employee is on coronavirus quarantine due to a lockdown order,

(2) the employee was advised to self-quarantine by a doctor,

(3) the employee is experiencing coronavirus symptoms and is seeking a diagnosis

(4) the employee is caring for someone else on coronavirus quarantine or someone advised to self-quarantine

(5) the employee is caring for a child during school closure, or the caretaker is unavailable, due to coronavirus precautions.

(6) the employee is experiencing a substantially similar condition. (there has been none identified)

Full-time employees are to receive 80 hours of sick leave, and part-time workers are granted how many hours they received in a 2-week period. Employees will receive sick leave regardless of length of employment.

The leave will be fully paid if the employees are taking sick leave to care for themselves. Workers taking leave to care for family members are paid at a 2/3 rate. Sick leave is capped at $511 per day or $5,110 total to for care of self, and $200 per day or $2,000 to for care of other. These wages will be exempt from social security taxes.

2. Emergency Family Leave

Employees can take 12 weeks of FMLA leave if they are unable to work or telework because they have to care for a minor child if the child's school or place of care has been closed, or if the child care provider is unavailable due to a coronavirus emergency.

To be eligible employees must have been employed at least 30 days.

The first 2 weeks may be unpaid (the employee may use PTO or vacation days, or the paid sick leave, above). For the rest of the leave, employers must pay employees 2/3 of normal pay, capped at $200 per day and $10,000 in total. Wages will be exempt from social security payroll taxes.

I've polled your questions on this new bill, and I've grouped and answered all of your questions below:

Do these laws applies to all employers?

No. The laws apply to all private employers up to 500 employees and all public employers, regardless of employee count. Private employers includes non-profit organizations.

Health care providers or emergency responders may exclude their workers from these rules. This is sad, as these workers need it the most. The government made a decision that these workers are exempt due to their essential work to the societal need to protect public health. Check the existing federal rules here and California rules here. Some of these "old" rules may apply to you.

Health care providers are broadly defined as the following employers: any doctor's office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.

Emergency responders are defined as anyone necessary for transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skill needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

Small businesses with fewer than 50 employees are exempted if it is a school closure sick leave or a school closure family leave AND granting the leave would jeopardize business viability. Employers should not send application papers to the DOL, but should keep documentation supporting the denial of the leave.

Some federal employees are exempted too. Ask your employer.

I'm a business owner and I'm already struggling. This is making me freak out! How will I make this work?

Previously paid payroll taxes may be returned to the employer to cover paid family or sick leave. Subject to certain caps, employers may recover 100% of the qualified benefits paid. Employers will receive tax credits for paid leaves. Tax credits are up to $200/day for family leave, up to $511/day for paid sick leave. Employers can take the tax credit against the employer's portion of social security taxes, and against hospital insurance taxes. For more guidance, check the DOL website.

Who is considered a child?

Child includes biological, adopted, foster, and step child, a legal ward, and a child you are physically and financially responsible for.

Can I take this leave to care for adult children?

You can take the sick leave to care for adult children. For the family leave, the child must be a minor, unless your child is disabled and dependent on you. However, it's possible you are eligible for the original FMLA protections. Click here.

Can I take this leave if grandma is on quarantine? She's the one who usually watches the kids while I work.

Yes. "Childcare provider" is broadly interpreted, and includes daycare centers, nannies, and family members or neighbors.

Is day care included in the school closure leaves?

Yes, this includes day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.

Can my employer ask me to find my own replacement to cover my hours on sick leave?

No.

I am afraid to ask for this leave because I'm worried they will fire me. What do I do?

Employers may not discharge or discriminate against workers for requesting or taking these leaves or for filing a complaint against the employer.

Can I take intermittent leave if I'm teleworking? Can I take it as a part time or reduced schedule?

Yes, but only if your employer allows it. You must agree with your employer. You may take it in any increment, for example, teleworking from 9:00 am through noon, then taking the leave in the afternoon while you attend to your kids. If your spouse is eligible for this leave too, he or she could take the leave from 9:00 am through noon, then telework in the afternoon.

The Department of Labor is encouraging employers and employees to collaborate to achieve flexibility and meet mutual needs. The Department is supportive of voluntary arrangements that combine telework and intermittent leave.

Can I take intermittent leave if I'm working at the jobsite?

If your employer agrees, you can take paid family leave or paid sick leave intermittently if you are taking it for school closures. You could take the leave Mondays, Tuesdays and Wednesdays, and work Thursdays and Fridays. If the other parent is also eligible for the leave, he or she could take the leave Thursdays and Fridays, and work Mondays, Tuesdays and Wednesdays.

If you are still working at a jobsite, paid sick leave may only be taken intermittently for school closure leaves, not for any of the other reasons, such as caring for your health when you have the virus or caring for another person who has the virus. The reason is to protect you from the public. The government does not want you go in and out of the jobsite if you could be a risk of exposure.

Can two parents take the leaves simultaneously during school closures?

You can only take the leaves if you are caring for your child, and therefore, unable to work or telework. If anyone is available to watch your children, including a co-parent or the usual child care provider, you would not be eligible for the leave. You cannot both take the leaves for the same period, but you can take the leaves intermittently and alternate work and childcare.

Can my employer ask me to perform work while I am on leave?

No. You must be relieved of all work duties. This does not include "de minimis" contact such as updates, requesting passwords or keys.

I am a part-time employee, can I take these leaves?

Yes.

Can I take 80 hours of paid sick leave due to ordered lockdown and an additional 80 hours of paid sick leave for any of the other reasons, such as caring for a person who has the virus?

No. Your paid sick leave is capped at 80 hours, but you may be eligible for another leave.

My child's school is closed. Can I take the paid sick leave followed by the paid family leave?

Yes, but only for a total of 12 weeks of paid leave. You can take either of the leaves, or both at the same time. If you take both, the 2 weeks of paid sick leave will cover the unpaid portion of the family leave. You will then receive 2/3 of your pay under the family leave, but only for 10 weeks, not 12.

Will I be eligible if my employer allows me to telework but I can't work because I'm homeschooling my kids due to school closures?

Yes. The Department of Labor issued guidance that the leaves are available if the parent is unable to telework due to childcare conflicts caused by school closures. If you are able to telework while caring for your child, the leaves will not be available.

My child's school is teaching virtual classes. Is the school considered "closed?"

Yes, even if the school offers distance learning, and the child is expected or required to complete assignments.

I am pregnant and was planning to take bonding leave, does this bill supersede the original FMLA?

No, the underlying FMLA is still in effect. These new rules expand the existing FMLA. Please know that for the original FMLA leaves, you still need to abide by the original eligibility criteria, and it is unpaid. For more information about FMLA, please click here. For California parents, please click here.

Can I take a second FMLA if I've already taken FMLA in the past year?

No, if you have exhausted your FMLA leave in the past year for bonding or to recover from a medical event, you are not allowed to request an additional family leave. The rule is still 12 weeks per employee, per year. The new family leave law gives a new leave reason under the FMLA, it does not give more weeks. However, you may still be eligible for 80 hours of paid sick leave and potential state-offered leaves, such as California sick leave and pregnancy disability leave.

Can the employer ask me to use my PTO or accrued sick leave instead of the new Paid Sick Leave?

No. The new sick leave rights will be added on top of existing sick leave accrued through the employer's policies. Employers are not allowed to change the policies in the next week (for example by eradicating the sick leave provisions) to avoid having to give additional sick leave. If you have accrued 2 weeks of sick leave under your employer's policies, you will have a total of 4 weeks of sick leave when the Act passes. If you had 2 weeks of accrued sick leave under the policy, and 2 weeks of PTO or vacation time, you will now have 6 weeks of time off work.

If employers already have a sick leave policy, there must be a new policy for coronavirus-related sick leave. Employers may not ask employees to use available sick leave instead of these new sick leave protections.

Do I need to be kept on the healthcare plan?

Yes, but there is a wrinkle. Many group health care plans have minimum level of working hour requirements, so if you have a treatment during your leave, make sure your employer reviews its carrier policies so you or the employer don't get stuck with the bill.

If my employer closes the business while I am on leave, will I still receive the remainder of the leave?

No. As of the date your employer closes the worksite, you are no longer entitled to the leave, and you should go on unemployment. This is true even if the worksite is closed temporarily. If the jobsite reopens and you are returned to work, you could then take your leave.

Can I request the leave if I am furloughed?

No. If your employer furloughs you because it does not have enough work, you are not entitled to then take these leaves. You should go on unemployment.

What happens when I have to return from leave?

When you return from leave, your job has to be returned to you. They may also give you a "substantially similar" position, which should be virtually identical in pay, location, hours, responsibilities and duties. There is an exception for employers with less than 25 employees. They may close out your job and terminate you if, (1) the position no longer exists due to economic pressures caused by the pandemic, (2) the employer made a reasonable effort to return you to an equivalent job, and (3) they try to reinstate you within one year of your sick leave if an equivalent job becomes available.

I am ready to return to work but my employer wants to check my temperature, can they do that?

Yes, employers are free to require a screening for a temperature or pass a medical examination to come back to work, but they can't check your medical records to see if you tested positive.

Can an employer put me on leave against my will?

Yes. They may ask you whether you are exhibiting symptoms. They may send employees home if they are exhibiting symptoms. Employers have a duty to keep the other employees safe.

How Do I Request the Leave?

Provide the following to your employer, in an email: your name, the dates for which you request leave, the reason for leave, a statement that you are unable to work because of these reasons. If you are requesting leave due to a lockdown order, provide the government entity that issued the order. If you request leave to self-quarantine based on medical advice, provide the doctor's note. If you are requesting leave because school is closed or your childcare provider is unavailable, provider: the name of your child, the name of the school or provider that is unavailable, a statement that no other suitable person is available to care for your child.

If your employer does not know these rules, be ready to show them the laws and educate them. There is a lot going on right now for businesses, and usually new labor protections don't get rolled out during economic turmoil. You cannot assume your managers will know these rules or will know how to implement them. Be ready to cooperate with them.

I have just been laid off, can I ask to be reinstated and get these leaves?

No. The law will only apply to employees who are still employed.

I work for a public entity with more than 500 employees, do the rules apply to me?

Yes, even if the public entity has more than 500 employees. You should also know that many public employers offer additional benefits. Make sure to review the policies and procedures.

I have a union job, do the rules apply to me?

Yes, and many union jobs have additional protections. The payment structures may be different for union workers. It may come through a fund. Make sure to ask your union representative and review the Collective Bargaining Agreement.

Do I get these rules in addition to the leaves my state gives me?

Yes. States such as California and New York already have paid leave laws in place, as well as other protections. These leaves would be in addition to state leaves. For more information about your rights if you are a California resident, please click here.

I am a 1099 worker. Do these rules apply to me?

No. You must be employed. You may be able to get a low interest business loan and the stimulus package has some remedies for you. You are in a very frustrating situation because you don't have any of the employee protections, unless you were misclassified.

I have asked my employer for these leaves and they are not giving it to me, what should I do?

If you are eligible for one of these leaves, and your employer refuses to give you the leave, your employer will be in violation of the law. The remedies for violating the law are: back wages, liquidated damages, attorneys fees and costs. The statute of limitations is 2 years, and 3 years for willful violations. There is also a potential for individual liability on behalf of agents of the employer, which is a really big deal. There will also be a possibility of class actions. If you are being denied, you should consult with a local attorney.

What can I do to help other people get these leaves?

You can share this article within your communities and help avoid unnecessary or unlawful layoffs. The laws are changing fast, and we simply cannot rely on our employers to educate us about our rights. The more we inform ourselves and educate each other, the more jobs we can save. I am relying on all workers to spread the message on these laws. Help me help you. We will get through this together.

Warmly,

The MamAttorney

DISCLAIMER - This blog is for educational purposes and to give general information and a general understanding of the laws relating to employment law. It is not intended to provide specific legal advice, nor should you use it for that purpose. By using this blog you understand there is no attorney client relationship between you and the Momattorney or Gruenberg Law and you should not use this blog as a substitute for competent legal advice from a licensed attorney in your state. We don't know anything about your particular situation, and the law has many exceptions. If you have a dispute with your employer, you need to consult with an employment lawyer.