FAQ – Paid and Unpaid Leave

03/26/20

What are my family and medical leave obligations to an infected employee? What about an employee that engaged in close contact with an infected employee? 

Employers should follow their existing leave and workers’ compensation policies if an employee communicates that she or her immediate family member has been diagnosed with the coronavirus. If employees have been diagnosed, but are not exhibiting symptoms, they may or may not be entitled to unpaid FMLA leave or paid sick leave. Employers may decide to provide extra sick leave or PTO, create a new sick leave policy for COVID-19, or suspend attendance policies.

Employees must have a “serious health condition" to invoke 12 weeks of unpaid FMLA leave. The coronavirus may be considered a "serious health condition" depending on the circumstances.

An employee with the coronavirus may be permitted to take FMLA leave. An employee who is taking care of a qualifying family member with the coronavirus may be permitted to take FMLA leave. Employees who refuse to come to work for fear of contracting the virus would likely not qualify for FMLA leave.

While a doctor's certification is generally needed for FMLA leave, if an employer understands that the employee has a serious health condition, the employer can waive the requirement to provide documentation. However, the FMLA rules regarding notices and documentation have not been lifted, and employers must continue to follow their regular and ordinary FMLA processes.

Additionally, on March 18, 2020, the federal government enacted the Families First Coronavirus Response Act, which expands family and medical leave benefits under the FMLA. Under this Act, employers with fewer than 500 employees and government employers must provide employees, who have worked for at least 30 days and are unable to work (or work remotely) because they need to care for their child (i) whose school has been closed or (ii) whose alternative childcare provider is unavailable due to the coronavirus, with 12 weeks of family and medical leave. The current effective date under the Act is April 2, 2020.

Under the expanded Act, the first 10 days of the leave may be unpaid (although employees can elect to substitute available vacation, personal medical or sick leave if terms of employer leave allow). The remaining leave shall be paid at not less than 2/3 the regular rate, up to a maximum of $200 per day and $10,000 total.

  • Current FMLA regulations for calculating the employee threshold for coverage apply in determining whether interrelated entities are examined together under the expanded provisions.
  • Employers get payroll tax credit for the qualified sick leave wages they pay, subject to the caps.
  • Employers are required to restore employees to their same or equivalent position, and if not available, have an obligation for one year to contact the impacted employee if such position becomes available (except for employers with under 25 employees).

What are my sick leave obligations to an infected employee? What about to an employee that engaged in close contact with an infected employee? What about an employee who engaged in close contact with an infected individual outside of work?

The Families First Coronavirus Response Act (which goes into effect on April 2nd) also provides for paid sick leave. Under the Act, full-time employees are entitled to two weeks (80 hours) and part-time employees are entitled to the typical number of hours they work in a two-week period.

Paid sick leave can be used for the following reasons:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to the coronavirus;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to the coronavirus;
  3. The employee is experiencing coronavirus symptoms and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to an order as described in reason (1) or has been advised as described in reason (2).
  5. The employee is caring for their child if the child's school or place of care has been closed, or the child's childcare provider is unavailable due to the coronavirus.
  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.

Employees who go on paid sick leave for reasons (1), (2), or (3) will be paid at their regular rate of pay. Employees who use their leave for reasons (4), (5), or (6) will be paid at two-thirds of their regular rate of pay. In no event, however, shall the paid sick leave exceed $511.00 per day or $5,110.00 in the aggregate for reasons (1), (2), or (3), or $200.00 per day or $2,000.00 in the aggregate for reasons (4), (5), or (6).

Employers cannot require employees to use other paid leave provided by the employer before using the paid sick leave under this Act. Existing paid leave is to be in addition to the leave provided under the Act. Employers will receive a payroll tax credit for the qualified sick leave wages they pay, subject to the caps.

On March 25, the Department of Labor released its model notice to employees: Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA) and related FAQs: DOL’s FAQs regarding the Notices.

What are my obligations to an employee that takes leave to care for a child or elderly parent that contracts the virus?

As set forth above, under the FMLA, an employee may be entitled to leave to care for a close family member who has contracted coronavirus. Additionally, the Families First Coronavirus Response Act provides for paid sick leave to care for an individual who is subject to a quarantine or isolation order related to coronavirus or has been advised by a health care provider to self-quarantine due to concerns related to coronavirus.

This is a fluid and rapidly changing situation and these resources are current only as of the date of publication. We recommend that you contact your local Quarles & Brady attorney regarding the most up-to-date information or with any other questions regarding this subject matter, or contact Otto Immel: (239) 659-504 / [email protected].

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