Coronavirus and Schools: The Families First Coronavirus Support Act
The Families First Coronavirus Support Act includes a variety of provisions, two of which are may be relevant to our clients: changes to the Family Medical Leave Act; and provisions for Paid Emergency Leave. At the outset, we emphasize that these two provisions are totally distinct from each other – they apply in different circumstances. Furthermore, the provisions are only relevant to employees who are expected to report for work, but either cannot or should not. In other words, neither provision applies to those personnel who are not working.
The changes to FMLA can be summarized as providing an additional basis for leave for a “qualifying need related to a public health emergency.” This states that “[t]he term ‘qualifying need related to a public health emergency’, with respect to leave, means the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” In the event an employee qualifies for such leave, the first ten (10) days are unpaid, and the remainder of the twelve (12) weeks are paid. The rate of pay is to be calculate as “no less” than two thirds (2/3) of the employee’s regular rate of pay, with a daily cap of $200 and a total cap of $10,000. The ten days of unpaid leave, however, will likely be paid leave anyway under the Emergency Paid Leave provisions discussed below. Since these provisions amend the FMLA, schools are “employers” and general principles we have previously applied to FMLA should be applicable here as well. For example, if your collective bargaining agreement or board policy permits or requires the concurrent use of other paid leave, that remains true here. Furthermore, the application process itself should be treated the same way as other FMLA applications and the amendment does not expand the total annual amount of leave available.
The Emergency Paid Leave provisions are more narrow in scope but available in other circumstances:
(1) The employee is subject to a federal, state, or local quarantine or isolation order related to COVID–19.
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
(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.
Schools are employers for purposes of this provision. If an employee qualifies under one of the six (6) categories listed above, then a full time employee is entitled to 80 hours of paid leave, and a part time employee is entitled to a number of hours equal to the average number of hours worked by that employee over a two week period. These provisions also include a statutory cap on the amount paid: $511 per day or a total of $5,110 for leave taken under reasons one through three above; or $200 per day or a total of $2,000 for leave taken under reasons four through six. Reason five, obviously, is the same standard as described in the FMLA amendments, with the exception that it makes no reference to working remotely. The net result is therefore that an employee who needs to take care of a child under 18 because of school closures resulting from COVID-19 and who cannot perform their work from home will likely be entitled a full 12 weeks of paid leave (assuming that employee has 12 weeks of FMLA leave still available). As bad as this sounds, remember that it only applies to employees who are expected to work and can’t work from home. For all those employees who are not working because of the closure, neither leave is available. Employees who are expected to work from home may still be entitled to the Emergency Paid Leave but will only be entitled to FMLA paid leave if they can demonstrate that the care of their children makes it impossible for them to work from home. Teachers are being paid anyway, but these new provisions are only likely to be widely relevant if some, but not all, schools begin to reopen.