Emergency Leave Act

Two provisions contained in the Families First Coronavirus Response Act which was signed into law by President Trump on Wednesday, March 18, 2020 will impact the availability and use of leave for state employees as a result of the COVID-19 situation. The Act is not retroactive and does not apply to leave already taken due to school or daycare closures. Managers, human resource professionals and payroll personnel should review the requirements, address additional questions with HRMS and legal counsel, and be ready to implement the requirements of the Act not later than April 1, 2020.

The Office of Management Budget will provide guidance on how this new law will work in the PeopleSoft Absence Management and Payroll system. OMB is currently researching how we will handle this information and the necessary changes.

Emergency Paid Sick Leave Act
Under the Emergency Paid Sick Leave provisions, state employees will be eligible for additional paid leave if the employee is unable to work or telework because the employee is one or more of the following:

  1. Subject to a federal, state or local quarantine or isolation order related to COVID-19.
  2. 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 is seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to a quarantine order or who has been advised by a health care provider to self-quarantine due to COVID-19.
  5. The employee is caring for a son or daughter as a result of school or child care provider closing due to COVID-19 precautions.
  6. The employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services.

Agencies that employ health care providers or emergency responders may elect to exclude such employees from these leave provisions pursuant to contemplated administrative rules adopted by the US Department of Labor. At this time, it is unclear whether rules will be in place prior to the effective date of the Act. Agencies that employ health care providers or emergency responders should follow this issue closely and seek legal guidance in the event these leave requirements cause staffing concerns.

For full time employees, the amount of additional paid sick leave is 80 hours. Required compensation during the additional paid leave period is at the employee’s regular rate of pay for reasons (1),(2), or (3) as outlined above, but is capped at $511 per day and $5,110 in the aggregate. Leave for reasons (4), (5), or (6) as outlined above is at 2/3 of the employee’s regular rate of pay and is capped at $200 per day and $2,000 in the aggregate. Wages paid for required additional sick leave are not subject to the 6.2% social security tax normally paid by employers on employees’ wages. Importantly, an employer may not require an employee to utilize other paid leave benefits before using the additional paid leave provided by the Act and the additional paid leave is available to an employee immediately regardless of how long the employee has been employed. Nothing in the Emergency Paid Sick Leave provisions diminishes existing rights or benefits, so employees whose pay would be capped can be proportionately supplemented with existing available leave to meet the employee’s regular salary. Paid leave under the Emergency Paid Sick Leave Act cannot be carried over year to year, and ends with the employee’s next scheduled work shift following termination of the need for leave qualifying under the Act.

The Department of Labor is required to develop a model notice and agencies will be responsible for posting an approved notice of rights and responsibilities under the Act. The Department of Labor is required to have a model notice completed not later than seven days after enactment. Once available, agencies should post this notice where other such notices to employees are posted.

Emergency Family and Medical Leave Expansion Act
Under the Emergency Family and Medical Leave Expansion provisions, state employees will be eligible for twelve weeks of leave if they are unable to work or telework due to a need for leave to care for a son or daughter as a result of a school or child care provider closing due to a federal, state, or locally declared COVID-19 public health emergency. This expanded basis for family medical leave, however, differs from other forms of family medical leave in a number of respects. Some key differences are as follows:

  • Employees are eligible for this leave if they have worked for the employer for 30 or more calendar days.
  • Leave is required to be paid after the first ten days at a rate of 2/3 of the employee’s regular rate of pay, but is capped at $200 per day or $10,000 in the aggregate. Required wages under the Act would not be subject to the 6.2% social security tax normally paid by employers on employees’ wages. An employee whose pay would be capped can be proportionately supplemented with existing applicable leave to meet the employee’s regular salary. Although the first 10 days of leave may consist of unpaid leave, in most cases, the additional paid leave available under the Emergency Paid Sick Leave Act will apply to this otherwise unpaid period. If paid leave under the Emergency Paid Sick Leave Act is not available, an employee may elect to substitute annual or other applicable paid leave, pursuant to the FMLA paid leave substitution provisions for a serious health condition under which the substitution of sick leave benefits may be limited to situations for which sick leave benefits would normally apply.  
  • Employers of health care providers and emergency responders can elect to exclude such employees consistent with contemplated administrative rules adopted by the US Department of Labor.

The Act is not retroactive and does not apply to leave already taken due to school or daycare closures. Managers, human resource professionals and payroll personnel should review the requirements, address additional questions with HRMS and legal counsel, and be ready to implement the requirements of the Act not later than April 1, 2020.