On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law. The Act includes two separate, but complimentary provisions, the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”). Both provisions become effective on April 2, 2020 and are currently set to sunset on December 31, 2020. At this time, we know that both provisions are applicable to public school districts regardless of size. The Department of Labor is expected to adopt regulations for implementing the new laws sometime in the next 15 days.
The EPSLA provides up to 10 days of temporary paid sick leave to any employee, regardless of days of service, who is unable to work or telework because of COVID-19 related issues.
- The rate of the paid leave is determined based on the nature of the interference.
- Full-time employees will be eligible for 10 days (80 hours) of leave at their regular rate of pay, up to a limit of $511 per day if they are:
- Subject to a quarantine or isolation order related to COVID-19;
- Advised to self-quarantine by a health-care provider; or
- Experiencing symptoms of COVID-19 and are seeking a medical diagnosis.
- Alternatively, employees will be eligible for up to $200 per day of paid leave when it is required to:
- Care for an individual subject or advised to quarantine or isolate; or
- Care for a child if school or place of care is closed or childcare provider is unavailable due to COVID-19.
- Similarly, part-time employees will be entitled to paid sick time equal to:
- the number of hours the employee works, on average, over a two-week period; or
- for variable schedules, the average number of hours worked per day over the previous six months or the reasonable expectation of the employee at the time of hire of the average number of hours per day the employee would normally be scheduled.
The EFMLEA expands the FMLA to provide up to 12 weeks of FMLA leave to full- or part-time employees who have been employed for 30 calendar days.
- Importantly, the EFMLEA expands the FMLA’s list of qualifying needs to include not being able to work due to caring for a minor child if the child’s school or place of childcare has been closed or is unavailable.
- Under the EFMLEA, the first two weeks of leave are unpaid; however, an employee may use accrued paid leave, which includes emergency sick leave provided pursuant to the EPSLA.
- The rate of pay for the remaining 10 weeks is based on a rate of not less than two-thirds of the employee’s regular rate of pay and the number of hours the employee would otherwise normally be scheduled to work and is capped for each employee at $200 per day or $10,000 in the aggregate.
Leave taken under either provision is protected, and districts will need to be mindful both of potential retaliation claims and the effects the legislation may have on their workforce as they transition into alternative modes of instructional delivery. For example, districts will be prohibited from requiring teachers to continue to work who access leave due to their own children being served at home, even if they would otherwise be expected to work from home.