Breaking Down the New Federal Emergency Paid-Leave Entitlements

Breaking Down the New Federal Emergency Paid-Leave Entitlements
Amy Robinson, JD, SRHM-SCP, SPHR | Miller Nash Graham & Dunn LLP

As you have likely heard by now, on Wednesday March 18, 2020, Congress passed and the President signed into law the Families First Coronavirus Response Act (the FFCRA). Among other things, this new federal legislation mandates two new emergency leave entitlements to employees for reasons necessitated by the COVID-19 (“CV19”) pandemic.

Type 1:  Emergency Paid Sick Leave

The first, is emergency paid sick leave, which I’ll refer to here as “E-PSL” to differentiate it from other paid sick leave entitlements.  E-PSL provides an additional bank of up to 80 hours of paid sick leave to all employees, regardless of length of service, when they are unable to work (or telework) the employee is: 

  1. Subject to a federal, state, or local quarantine or isolation order related to CV19.
  2. Advised by a health care provider to self-quarantine because of CV19 concerns.
  3. Seeking a medical diagnosis because the employee is experiencing symptoms of CV19.
  4. Caring for or assisting an individual who is subject to an order or recommendation as described in 1 or 2 above.
  5. Caring for the employee’s child because of school or daycare closure, or because the child care provider is unavailable, due to CV19.
  6. Experiencing any other substantially similar condition as defined by Health & Human Services.

Type 2:  Emergency Family Medical Leave

The second is emergency family medical leave, which I’ll refer to as “E-FMLA”.  E-FMLA eligibility is limited to employees who have completed at least 30 days of employment with the employer.  It would provide up to 12 weeks of leave, with the first two being unpaid and the rest being paid, if an employee is unable to work (including telework) because they are needed to care for their minor child whose school or daycare has been closed, or the child care provider of the child is unavailable due to a government declared emergency with respect to COVID-19. A “child care provider” for these purposes is a provider who receives compensation for providing child care services on a regular basis. 

There is an exception included in this particular section of the law that would allow employers of less than 25 employees to deny reinstatement to employees returning from E-FMLA leave if certain specified circumstances are met, but otherwise an employee would be entitled to be restored to their prior job absent special circumstances that typically require individual consideration and legal guidance.

This summary comparison chart provides a quick side by side comparison of E-PSL and E-FMLA.

What this Means to You

Before I go further, let me just acknowledge what is probably the most challenging aspect of these new requirements for business owners: These leaves will both be employer funded, and with very few exceptions all employers with less than 500 employees are obligated to provide qualifying employees with these paid benefits. In addition, it is in addition to, and not a replacement for, other paid leaves available under union contracts, employer policies, and other state, or local laws.  This includes Washington’s paid sick leave law, local sick leave mandates, as well as the new Paid Family and Medical Leave (PFML) that became available in 2020.  Since the AGC’s very active government affairs department has been great at keeping you informed, you were likely already prepared for this reality.

While the potential additional expense of these mandatory benefits is going to be tough for lots of employers still, there were also some amendments to the original bill that might make this more manageable for employers than was originally feared:

  • You may have already spotted the first, which is that E-FML was originally going to cover a LOT more absences than just those necessitated by a school closure. 
  • Likewise, the updated version also made it clear that this leave wasn’t required if the employee is able to work remotely, so that too limits the potential circumstances where this may be triggered.
  • Perhaps most importantly, the final version capped the amount of these paid benefits. It was also made clear(er) that the tax credits available to employers who provide these benefits will be applied against the employer’s payroll tax liability for that calendar quarter, and it is refundable if it exceeds the employer’s liability for that quarter.
    • For E-PSL reasons 1-3, it would be paid at the greater of the employee’s regular rate or applicable minimum wage, but capped at $511 per day and $5,110 in the aggregate.
    • For E-PSL reasons 4-6, it would be 2/3rds of the greater of the employee’s regular rate or applicable minimum wage, but capped at $200 per day and $2,000 in the aggregate.
    • For E-FML, the rate of pay is 2/3rds the regular rate of pay, capped at $200 per day and $10,000 in the aggregate. 
  • 100% of the benefits you pay for E-FML or E-PSL up to the requirements and caps noted above may be applied as a credit against your quarterly payroll taxes.

The Department of Labor is now charged with enacting rules that we hope will clarify a few critical details including potential exemptions to both the E-PSL and E-FML requirements for employers with less than 50 employees for circumstances where complying would “jeopardize the viability of the business as a going concern.”  There are also special exceptions related to health care providers and first responders, that those rules should also define. 

Those rules are required to be published within 15 days of the date the FFCRA became law, with a model workplace posting to be developed by March 25, 2020.  The FFCRA also becomes effective within 15 days from when it was signed, so by April 2, 2020, unless sooner declared by the Secretary of the Treasury. The law then sunsets on December 31, 2020. 

Our team at Miller Nash team is working furiously to keep the evolving legal updates on these developing requirements flowing.  For more details on the specific emergency leaves, I encourage you to visit our website for COVID-related resources, including our Emergency FMLA and Emergency Paid Sick Leave articles, as well as information about unemployment insurance rules intended to address benefits for employees in the event of layoffs, work stoppages, or furloughs.

In the meantime, we wish you and all your teams good health!

Amy Robinson, JD, SRHM-SCP, SPHR
Miller Nash Graham & Dunn LLP

Amy A. Robinson represents public and private employers throughout Washington and Oregon in a broad range of workplace-related issues. In the construction industry, she works with owners, developers, general contractors, and specialty contractors to skillfully handle matters regarding wage-and-hour, leave laws, disability and accommodation, and complaints related to discrimination, retaliation, and harassment. She is a frequent speaker and presenter to fellow human resources professionals, managers and employees, clients, and trade and industry groups. Before her legal career, Amy worked as a human resources professional. Amy can be reached by phone at 360.619.7024 or by email at amy.robinson@millernash.com.

Miller Nash is actively monitoring the legal and regulatory landscape in response to the ​COVID-19 crisis. To visit our resource page, please click this link

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