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Family or Medical Leave and COVID-19

The Family and Medical Leave Act (FMLA) is in place to help workers who are sick or who need to care for sick immediate family members. As the COVID-19 virus spreads, more families may need to stay home from work and care for children, partners, or parents. In light of the pandemic, there are two new acts put in place to help sick people, or those caring for sick family members.

The new acts and how they might help you take paid leave are outlined below.

Note: Not everyone is covered under FMLA or the new acts, so you may need to speak with your employers about another solution for paid or unpaid leave.

Timeline of Coronavirus Acts

FMLA has been in existence since 1993. These new acts change FMLA for a short period of time. They were put into place as emergency measures in response to the COVID-19 pandemic on these dates:

  • March 18, 2020 - Families First Coronavirus Response Act (FFCRA)
  • March 18, 2020 - Emergency Paid Sick Leave Act (Part of the FFCRA)
  • March 18, 2020 - The Emergency Family and Medical Leave Expansion Act (Part of the FFCRA)
  • March 27, 2020 - Coronavirus Aid, Relief, and Economic Security Act (CARES)
  • April 2, 2020 - Emergency measures from these acts became effective
  • December 31, 2020 - Emergency measures from these acts will expire (this date could change based on how the pandemic changes or if it returns in the future)

Families First Coronavirus Response Act (FFCRA)

As of April 1, 2020, the "main" new act was put into action. This temporary act will expire on December 31, 2020, when laws will go back to basic FMLA rules.

The Families First Coronavirus Response Act provides benefits such as:

  • Up to 80 hours of paid sick leave for government quarantine or self-quarantine (recommended by a health professional) under the Emergency Paid Sick Leave Act (read more below)
  • Up to 12 weeks of expanded family and medical leave, including 10 paid weeks, for COVID-19 under The Emergency Family and Medical Leave Expansion Act (read more below)
  • Reimbursement for companies with fewer than 500 workers for their employees' paid time off
  • Tax credits for companies who let their employees take COVID-19-related sick leave

Emergency Paid Sick Leave Act (EPSLA)

This act is a part of the FFCRA. It enables eligible employees to take up to two weeks of paid sick time. This does not replace your current sick time at your company, but is in addition to any time you already have.

You will receive full pay for this extra sick time. But, the amount you can be paid is capped. This extra time only applies to employees who:

  • Cannot work due to quarantine or isolation orders
  • Are self-quarantining
  • Are showing symptoms

For example, this extra sick time would not apply if you suddenly got sick with influenza A or strep throat.

Emergency Family and Medical Leave Expansion Act (EFMLEA)

This act is an expansion to the FFCRA. It provides 12 weeks off for people caring for children whose school or daycare has closed due to COVID-19. Ten of the 12 weeks are paid. You would not get your full rate (typically, you would receive 2/3 pay), and the amount you can receive is capped by the law. But you would get much more relief than you usually would under the FMLA, which is unpaid.

This leave is not available to everyone. For example, if you have completely used up your FMLA this year, you will not be eligible for EFMLEA. 

Coronavirus Aid, Relief, and Economic Security Act (CARES)

This act clarifies the payment limits you can receive for COVID-19-related sick leave. It also gives longer family or medical leave to anyone:

  • Laid off or fired after March 1, 2020
  • Going to be re-hired by the same company before December 31, 2020

The CARES act "fixed" some mistakes and vagueness from the FFCRA and the EPSLA and EFMLEA within it. It also created new programs not related to family or medical leave involving loans, tax credits, and unemployment.

Note: Small companies will less than 50 employees can still make some of their own rules when it comes to COVID-19 sick leave.

Who Is Eligible for "COVID-19" Leave?

You must be an employee of a covered employer to qualify. Private employers with fewer than 500 employees and most public employers are covered, though some small businesses with fewer than 50 employees and certain federal employers may be exempted.

The FMLA requires employees to have worked for their employer for a specific amount of time. The EPSLA (paid sick leave) does not have that requirement. To qualify for the EFMLEA (leave to care for children), you must have been employed with your company for at least thirty days immediately before your leave.

For the EPSLA, in most cases, your employer will require that you:

  • Are showing COVID-19 symptoms
  • Are caring for someone with these symptoms
  • Are waiting for a COVID-19 test or your test results
  • Have been ordered to quarantine or self-isolate

FFCRA leave does not allow someone to take time off to prevent getting the coronavirus unless they are under quarantine, isolation, or stay at home orders. For example, you cannot be paid to not work if you could easily work from home. However, if you need to care for your children while a spouse self-isolates in your home, you could get FFCRA leave.

There can be grey areas regarding what qualifies, particularly when it comes to health care providers. If you have questions, your manager or HR department are a good place to start.

What Does Sick Leave Look Like During the Pandemic?

We are seeing major changes for COVID-19 leave coming from the federal and state government. Many companies were adding new policies without regulation until the national policies started on April 2, 2020.

Speak with your manager if you or a loved one gets sick. You may need to provide proof of testing, or some companies will be happy to have you stay home if you suspect you are sick.

If your coworkers have COVID-19 and you choose to not go to work, your job may not be protected under the FFCRA or FMLA. In these situations, you should speak to your boss about work from home or flexible work hours to keep yourself safe. If you feel you are significantly at risk, read our article on unsafe work conditions and COVID-19.

Can FMLA Be Used for Childcare?

Unfortunately, the standard policy does not protect your job if you are at home caring for healthy children. Doing childcare at home would involve taking your own sick or vacation time, or discussing flexible work arrangements with your manager.

Can FFCRA Be Used for Childcare?

FFCRA does allow for up to ten weeks of partial pay to care for your kids. Some companies are also expanding their time off or required hours to make room for childcare.

These are known as “flexible leave policies" and cannot discriminate against anyone. For example, a company can't give extra paid leave to women for childcare, but deny it for men.

Can I Be Sent Home and Forced to Take FMLA/FFCRA?

Your boss can send you home if you seem sick — but only if the company policy supports it, and it is not discrimination. If you are being sent home, you should clarify if it applies under FFCRA leave or FMLA leave. They could try to send you home whether you are covered by these acts or not, which means you would need to use your own time off.

You cannot be forced to take FMLA or FFCRA. Unpaid and paid medical leave are a perk for employees who need it — and is always optional.

You do have options. You can try to prove you are not sick and can work, or you can work with an attorney to prove they were wrong to send you home. You can also use an attorney to prove you need full or partial paid FFCRA sick leave if your employer is denying you time off.

How an Attorney Represents Your Rights

You have rights to work, care for yourself and your family, and to feel safe against catching the virus. An attorney will need to hear the specifics of your situation before they can tell you what type of case you have. It could involve areas of law like healthcare, family leave, employment, and/or discrimination.

Talk to an attorney first to understand your options specific to your state's laws. Regulations during the pandemic will change quickly, so you can stay up to date on the U.S. Department of Labor's Wage and Hour Division homepage.

Next Steps

Contact a qualified employment attorney to make sure your rights are protected.

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