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More Updates on Paid Leave for Workers under the Family First Coronavirus Response Act and Limits on Paid Leave under the Act

Laura Wilson

As we have reported in two previous Blog posts, (see here and here) when Congress passed the Families First Coronavirus Response Act  on March 18, 2020, the law expanded paid leave rights for many workers who are affected by the coronavirus. The Act expands Family and Medical Leave Act rights and gives employees a right to paid leave in certain circumstances under the Emergency Paid Sick Leave Act.

The Department of Labor (DOL) has issued Guidance and Rules on the law that helps explain the paid leave rights is gives to workers. (Visit DOL Q&A here.)  This included the following important points:

  • The 12 weeks of emergency FMLA leave available under the FFCRA is not in addition to any leave rights under the FMLA that workers had before the FFCRA was passed. So any unpaid FMLA leave used by an employee during the previous 12 months for non-COVID-19 reasons reduces how much paid leave employee can get under the FFCRA.
  • Workers who are laid off because an employer does not have work for them or the worksite closes will not get paid sick leave or expanded family and medical leave. However, they may be eligible for unemployment insurance benefits regardless of whether the employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local order, like Ohio’s Stay at Home order. (For information on recent changes to unemployment benefits in Ohio see https://fmr.law/expanded-access-to-unemployment-benefits-in-ohio/
  • Employers must provide the same (or a nearly the same) job to an employee who returns to work following leave taken under the FFCRA, whether paid sick leave or paid FMLA leave. But job restoration rights under the FFRCA do not protect employees from layoffs if the business closes.
  • Employees who are “health care providers” may be exempted from the paid leave requirements of the Act.  The term “health care provider” is understood very broadly to include: workers at any doctor’s office, hospital, health care center, clinic, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, labs and medical testing sites, and pharmacies.  This also includes anyone who is employed by a business that has a contract to provide services for maintenance or operation of a healthcare facility.
  • The law does not apply to employers with more than 500 and employers with less than 50 employees may be exempt and would not have to give their workers paid time off under the new law.

It is important to understand the limits of paid leave under the FFCRA. Unlike emergency paid sick leave, under the FFCRA emergency FMLA leave is only available if a worker has to take time off because their child’s school or daycare is closed due to COVID-19. It does not give additional paid FMLA leave to a person who has tested positive for COVID-19 or who is staying home to care for a sick family member. Also, even if a worker does qualify for emergency FMLA paid leave, the first ten days are without pay.

An employee can take no more than 12 weeks of emergency FMLA leave between April 1 and December 31, 2020. An employee can only take up to 12 weeks of leave under both the emergency FMLA and FMLA within the employer’s 12-month period. So any prior FMLA leave a worker has used in the 12 month FMLA period will count against the emergency FMLA leave that worker can take and vice versa. So, for example, if an employee uses emergency FMLA leave to stay home with a child whose school is closed, once the Coronavirus emergency is over, the days of emergency FMLA leave used under the FFCRA will not be there when a worker goes back and may need leave for a different reason.

The FFCRA has brought several very rapid changes to employment law. We are working hard keeping up-to-date on what the FFCRA means for workers. If your employment has been impacted by the coronavirus pandemic, we are here to help.

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