The Emergency Family and Medical Leave Expansion Act (“Emergency FML Expansion Act”) and the Emergency Paid Sick Leave Act (“EPSLA”) were enacted on March 18, 2020 as part of the government’s broader “Families First Coronavirus Response” lawmaking. The requirements of these two Acts became effective on Wednesday, April 1, 2020, and are scheduled to sunset on December 31, 2020.
Both Acts apply to certain private sector employers with fewer than 500 employees. The Emergency FML Expansion Act requires covered employers to provide up to 12 weeks of emergency leave necessary to allow for care of a minor child whose schooling or day care has been affected by the coronavirus. The Emergency Paid Sick Leave Act requires covered employers to provide up to 80 hours of paid sick leave to an employee unable to work due to a broad list of medical issues stemming from Covid-19. These two provisions are discussed in further detail below.
Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act amends the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. 2612(a)(1), by permitting eligible employees to take leave “because of a qualifying need related to a public health emergency.” Under the Expansion Act, the term “qualifying need related to a health emergency” means that an employee is unable to work (or telework) due to the need to care for a minor child whose school or child care has been closed, or whose child care provider is unavailable, because of a public health emergency relating to COVID-19. A private sector employer with fewer than 500 employees must provide up to 12 weeks of emergency FMLA leave to a covered employee in these circumstances.
Limits on Pay
Restoration to Position After Leave
Employment Under Multi-Employer Bargaining Agreements
Emergency Paid Sick Leave Act
Under the Emergency Paid Sick Leave Act, a private sector employer with fewer than 500 employees must pay an employee for sick leave if the employee is unable to work (or telework):
Paid Sick Leave Requirements
Rate of Pay
Limits on Compensation
Effect of Other Types of Leave
Unlawful Discharge and Discipline
Violations of the Act
The Secretary of Labor has been directed to issue guidelines to assist employers in calculating the appropriate amount of paid sick leave to be provided employees under this Act. Since the Act was passed, guidelines have been posted online by the U.S. Department of Labor’s Wage and Hour Division.
Both Acts authorize the Secretary of Labor to issue regulations exempting coverage in certain limited circumstances.
The Emergency FML Expansion Act vests the Secretary with authority to issue regulations that (a) exclude certain health care providers and emergency responders; and (b) exempt small businesses withfewer than 50 employees from the requirement of the Act when such requirements “would jeopardize the viability of the business as an ongoing concern.”
Similarly, the Emergency Paid Sick Leave Act authorizes the Secretary to issue regulations to exclude certain health care providers and emergency responders. The Secretary of Labor may also exempt small businesses with fewer than 50 employees from requiring paid sick leave in limited circumstances – e.g., where the employee cannot work because the employee is caring for a son or daughter due to school or child care closures, or the unavailability of the child care provider due to COVID-19 precautions—where imposing unpaid leave would jeopardize the viability of the business.
Please do not hesitate to contact us regarding updates on any exemption regulations enacted by the Secretary of Labor, or any other matter.