Paid Leave in the COVID-19 Health Emergency - Know Your Rights

If you work at a small or midsize company, you have certain workplace rights related to the coronavirus that you might not know about. The Families First Coronavirus Response Act (FFCRA) requires employers to cover a designated amount of leave for their employees who cannot work due to the impact of COVID-19, through the end of 2020. In addition, this bill includes employer reimbursement provisions, as well as funding for free coronavirus testing, nutrition security, and unemployment extension.

We took an informal poll among colleagues who work in various industries, and not a single one had heard of the Family First Coronavirus Response Act nor knew what it does, even though it has been in effect since April 1, 2020. It has also been required by law for businesses to post notice of the FFCRA in the workplace (or electronically). The stipulations within the law are so vast and its text is so littered with complex legalese that even if you’ve come across a mention of the FFCRA before, it’s no surprise that you might be unaware of its purpose or stumped on how it can protect your income and your employment.

But we at EmmaWell want you to know your rights - in plain English - which is why we parsed the dense text of this new federal law and laid out some major points here. We hope that giving you a clear picture of your options as an employee in the midst of the coronavirus crisis might provide some relief or hope during a stressful time.

What can the FFCRA do for me as an employee?

The law provides two provisions for those affected by COVID-19 who cannot work/telework:

1. Emergency Paid Sick Leave covers time off work for all employees who cannot continue working due to COVID-19 for up to two weeks (80 hours).

2. Public Health Emergency Leave expands the Family and Medical Leave Act (FMLA) for instances when childcare becomes unavailable due to COVID-19 and provides an additional 12 weeks of family leave (10 of which are paid).

What conditions would make me eligible for paid leave under the FFCRA?

If you are unable to work or telework because:

1. You have been subject to a federal, state, or local quarantine or isolation order related to the COVID-19 public health emergency.

2. You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

3. You are experiencing symptoms of COVID-19 and seeking a medical diagnosis.

4. You need to provide care for an individual who is infected or has to remain quarantined.

5. You need to provide care for your child(ren) whose school or childcare provider has become unavailable due to COVID-19 precautions.

6. You are experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.

You can also use this handy eligibility assessment tool on the Department of Labor’s website.

How much of my income can I continue to receive if I’ve been advised to quarantine or have symptoms of COVID-19 (reasons 1-3 above)?

While you are not working under emergency paid sick leave, you will receive 100% of either your regular rate of pay or the minimum wage where you are employed (whichever is greater). Your employer is not required under the law to pay you more than $511 per day ($5,110 total) in this scenario. You may also be eligible for additional income under unemployment insurance or state temporary disability insurance.

How much of my income can I continue to receive if I am responsible for the care of my child or someone else whose health has been impacted by COVID-19 (reasons 4-6) above?

You may use emergency paid sick leave for this reason at a rate of two-thirds of either your regular salary or the minimum wage where you are employed (whichever is greater). Your employer is not required under the law to pay you more than $200 per day ($2,000 total) if you are taking leave to care for another individual.

If you are unable to work for family reasons, you may also be eligible to take emergency family leave, which counts towards your 12-week FMLA entitlement. After the first (unpaid) ten days of leave, you will be paid at a reduced rate, which is generally two-thirds of your regular rate. The law sets a maximum daily payment of $200 and a maximum total leave amount of $12,000.

What criteria do I have to meet to be covered under the FFCRA?

If you work part-time or full-time for a private company with less than 500 employees or for any federal, state, or local government agency, you are entitled to emergency paid leave under the FFCRA. If you meet these criteria and have been at your job at least 30 days, then you may also take up to 12 weeks of emergency paid family leave when your child’s school or childcare provider is unavailable due to COVID-19.

If you work for a health care provider or emergency responder, your rights lie in a gray area, as your work is considered essential to the U.S. for detecting the disease, saving lives, or curbing the pandemic. Employers that fall under this category include doctors’ offices, clinics, pharmacies, medical labs, drug manufacturers, and nursing facilities. Unfortunately, it is at the discretion of your employer to grant or deny you emergency sick time or family leave.

If you are self-employed, and you would meet the criteria to receive emergency sick or family leave while working for an employer, you can claim an income tax credit by withholding an appropriate amount from estimated tax payments for 2020. This credit would offset your federal self-employment for any taxable year equal to your “qualified sick leave equivalent amount” or “qualified family leave equivalent amount.”

How much total paid time off of work will I be allowed under this law?

If you are a full-time employee, you are entitled to a maximum of 80 hours of emergency paid leave over a two-week period. If you are a part-time employee, you are entitled to the number of hours that you would typically work over a two-week period. For emergency family leave, you may take an additional 12 weeks. The first ten days of emergency family leave are not required to be covered, so you may either use your emergency paid sick time or any accrued vacation, personal, or sick days as income.

As long as you are still going to your workplace, you cannot take your emergency paid sick time or family leave intermittently. If you are working remotely and come to an agreement with your employer, you have the option of taking your leave intermittently for a FFCRA-covered reason, such as when your child’s school or daycare suddenly closes due an outbreak.

You also may not be eligible for paid leave if your employer would not otherwise have work for you to do. For example, if your workplace has shut down and workers have been furloughed, you cannot expect your employer to provide paid time off. Under these circumstances, you may be eligible for unemployment insurance through your state.

Will these paid leave requirements hurt my employer?

The law is designed to benefit employees without undercutting employers. Private companies that have fewer than 500 employees will receive reimbursement for providing paid leave related to COVID-19 in the form of refundable tax credits, meaning the federal government will cover at least a large portion of the paid leave costs. It gives companies an opportunity to both retain their employees throughout a tumultuous time and ensure that their employees are not forced to choose between their paychecks and their families.

What employers are excluded from providing mandated paid leave?

Private companies with more than 500 employees have no obligation to adhere to the FFCRA, though they may face political and popular pressure to provide paid leave voluntarily (with no federal assistance). Companies with fewer than 50 employees may be able to claim an exemption from the law if they can demonstrate that providing leave would jeopardize the viability of their business. If an employer decides to reduce operations, cancel work shifts, or lay off employees due to loss of business, the paid leave rules do not apply, as they are strictly intended for reasons related to COVID-19.

When can I take emergency paid sick leave or emergency family leave?

As of April 1st through December 31st of this year, emergency paid leave under the FFCRA is available for immediate use. Regardless of how long you have worked at your company, you are entitled to paid emergency sick leave without needing to use your PTO or accrued annual leave. You are also not required to find a replacement to cover your position while you are out.

What information should I submit to my employer to prove eligibility for emergency paid sick leave or emergency family leave?

To substantiate your claim (and enable your employer to secure a tax credit), it is advised to provide the following in writing to your Human Resources Department or supervisor:

1. Your name

2. The dates you are requesting for your leave period

3. Qualifying reason for the leave

4. Statement that you are unable to work in person or remotely due to your qualified reason for leave

5. The government order or name of the health care provider who advised you to self-quarantine due to concerns related to COVID-19 (if applicable)

6. The names of any child(ren) being cared for (if applicable)

   1. The name of your child’s school or childcare provider that has closed or reduced hours due to COVID-19

   2. Statement that no other suitable person will care for your child during your leave period

Can I lose my job for taking paid leave?

The law protects you against job loss, disciplinary action, or discrimination for using your emergency paid sick time or emergency family leave. Likewise, your employer must continue your health care coverage on the same terms as while you were working and reinstate you to your former position or an equivalent position.

The FFCRA is hardly a perfect law that guarantees universal leave when every working American needs it most, and it also places a hefty burden on businesses that might already be struggling. But it is a positive step and helps ensure that employers will value employee safety and well-being and provide paid leave when their employees are unable to work due to this health crisis. Now that you know the ins and outs of the FFCRA, we hope you feel empowered to take necessary time away from work to care for yourself or your family if you’ve been impacted by the coronavirus.

With Warmth and Wellness,

Your EmmaWell Team