The FFCRA has two components: 1) it provides for emergency paid sick leave, and 2) it amends the Family and Medical Leave Act (FMLA) to provide for paid, job-protected leave for certain COVID-19 related childcare needs.
The U.S. Department of Labor (DOL), which enforces the FMLA, released an initial question and answer document on March 25, and followed with additional guidance on March 27, and again on March 29. DOL noted that they intend to issue guidance specific to public
sector employers soon. On April 1, 2020 DOL issued administrative regulations under FFCRA. The Questions and Answers below outline relevant information we know to date. Information about how these laws will apply to school districts is still developing, and we will provide further guidance as soon as more information is available.
Leave Entitlement
1. Q: Our district’s board of trustees recently passed a resolution authorizing the district to provide paid leave to employees who are absent from work for reasons related to COVID-19. Would this leave satisfy the district’s requirement to provide Emergency Paid Sick Leave (EPSL)?
A: The employee may use emergency paid sick leave under this policy before using any other accrued paid time off for the qualifying reasons stated above.
Therefore, a board resolution authorizing paid leave would satisfy the EPSL requirement, but only if the resolution:
- Does not require an employee to exhaust their own accrued personal, sick, or local leave prior to receiving paid leave
- Applies to all full- and part-time employees
- Provides at least two weeks of paid leave
- Applies to an employee who is: 1) subject to federal, state, or local quarantine or isolation order due to COVID-19 concerns; 2) advised by a health care provider to self-quarantine due to COVID-19 concerns; 3) experiencing COVID-19 symptoms and seeking a medical diagnosis; 4) caring for someone who is subject to either 1 or 2 stated above; and 5) caring for his or her child due to childcare or
school closure as a result of COVID-19 precautions
- Provides leave at the employee’s regular rate of pay, for leave taken due either number 1, 2, or 3 outlined in the third bullet point above
- Provides leave at least 2/3 of the employee’s rate of pay, for either number 4 or 5 stated above
- If the resolution meets the above criteria, the district does not need to provide additional leave under EPSL. Districts should follow the procedures outlined in Question 12 below to ensure the district can document that the eligible employee received his or her emergency paid sick leave entitlement.
2. Q: What if a district’s board resolution authorizing paid leave related to COVID-19 does not contain all the elements listed in Question 1?
A: If the resolution does not meet all the above conditions, paid leave under EPSL may be required. For example, if the resolution requires an employee to use their own accrued leave before receiving paid leave, the district will need to provide two weeks of paid EPSL first, before requiring the employee to use accrued leave. EPSL is provided in addition to other employee leave
entitlements.
As another example, if the board resolution does not apply to part-time employees, the district would still be required to provide EPSL to an eligible part-time employee. Also, note that any employee who received paid leave under a board resolution prior to April 1, 2020 (the effective date of the act) would still be eligible for two weeks of EPSL as of April 1.
3. Q: Does the 12 weeks of expanded family and medical leave mean that an employee may receive up to a total of 24 weeks of FMLA leave?
A: No. DOL clarified that the total amount of family and medical leave, whether under the FFCRA or the FMLA, is 12 weeks. Expanded FMLA is included in, not in addition to, the total FMLA entitlement of 12 weeks in a one-year period. Districts should count the use of expanded family and medical leave together with any other FMLA time an employee used during the leave
year.
For example, if an employee used four weeks of FMLA leave in January to recover from a surgery, they would have eight weeks of leave remaining for expanded FMLA or regular FMLA purposes.
4. Q: Are the two weeks of EPSL in addition to an employee’s FMLA leave?
A: Generally, no. There are limited situations in which an employee may be entitled to fourteen weeks of leave (12 weeks of FMLA + 2 weeks of EPSL). DOL noted an employee who has already used his or her allotment of 12 weeks of FMLA leave prior to the need for EPSL would still be eligible to receive two weeks of EPSL (assuming they otherwise meet the criteria).
In addition, an employee who takes two weeks of EPSL for self-quarantine but does not display symptoms (and therefore does not qualify for FMLA) would still be eligible to use 12 weeks expanded FMLA leave after using the EPSL leave. In all other situations, an employee would use EPSL and FMLA leave (either regular or expanded) concurrently.
5. Q: May an employee use Emergency Paid Sick Leave to cover the first 10 unpaid days under the Emergency Family and Medical Leave Expansion Act?
A: Yes. The Act permits the employee to use Emergency Paid Sick Leave for this purpose.
6. Q: Can expanded family and medical leave be taken intermittently?
A: Yes, but only if the district approves of intermittent use of leave. For example, if an employee only has childcare responsibilities for part of the workday, with district approval they could use expanded FMLA to account for those hours, and work (or telework) for the remainder of the day. Intermittent leave would not be appropriate for an employee using the leave for symptoms
or exposure to a communicable disease, unless the employee is working remotely.
7. Q: Does the act require a district to pay an employee for all FMLA leave, or only expanded FMLA leave?
A: The law only requires districts to pay an employee if they use expanded FMLA beyond ten days, or if they qualify for emergency paid sick leave. Districts should continue to follow their usual process for use of regular (non-expanded) FMLA leave, which is still unpaid leave.
Coverage and Eligibility
8. Q: Do both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act apply to school districts with more than 500 employees?
A: Yes. While private sector employers with more than 500 employees are exempt from emergency FMLA, both acts apply to all state and local government entities, including school districts and education service centers, irrespective of the number of employees.
9. Q: When do the requirements for EPSL and expanded family and medical leave take effect?
A: The law goes into effect on April 1, 2020. The requirements are not retroactive, so only employee leave taken on or after April 1 is eligible. Both EPSL and expanded FMLA expire on December 31, 2020, and cannot be used after that date.
10. Q: How do we calculate the amount of paid sick leave or expanded family and medical leave for a part time employee? How do we calculate paid leave for an employee with a variable schedule?
A: Use the average number of hours the employee is normally scheduled to work in a two-week period. A part-time employee would be eligible for paid sick leave up to the number of hours they typically work. For an employee with a variable schedule, calculate the average hours worked over the last six months the employee was scheduled to work, and base paid leave on that
average.
11. Q: May an employee take leave under the act and receive pay during periods when the district is closed?
A: No. If employees are not expected to report to work (or to telework) for one or more weeks, the days the business is closed do not count against the employee’s FMLA leave, and therefore would not have to be paid under the Act.
12. Q: If an employee is asked by a doctor to self-quarantine because the employee may have been exposed to Coronavirus, what steps should the district follow concerning leave?
A: For any employee asked by a medical provider or by the government to self-quarantine, a district should provide the employee with Emergency Paid Sick Leave and request documentation described in the answer to Question 11. If the employee begins to experience symptoms of COVID-19 while in self-quarantine, the district could designate the employee for (regular) FMLA. The FMLA designation
could occur at a later point, when the employee has recovered and returned to work (including telework). If an employee returns to work after a 14-day self-quarantine without ever showing any symptoms that they acquired the virus, only apply EPSL.
Documentation and Administrative Issues
13. Q: How does an employee request Emergency Paid Sick Leave?
A: Employees must notify their supervisor or the designated Human Resources representative of the need and specific reason for leave under this policy. Districts should make a form available to all employees (e.g., through district intranet or employee portal) in a manner accessible to all. Verbal notification should be accepted until practicable to provide written notice.
Once EPSL has begun, the employee and his or her supervisor should determine reasonable procedures for the employee to report periodically on the employee's status and intent to continue to receive paid sick time. The Texas Association of School Boards has a sample request form available in their HR Library that districts may wish to use.
14. Q: What kind of documentation should a district request from an employee who meets the eligibility requirements to receive emergency paid sick leave?
A: The documentation would depend on the reason the employee is taking EPSL. For self-quarantine, a district may ask the employee to provide a copy of a government self-quarantine order, or a recommendation for self-quarantine from a health care provider. If the employee is taking EPSL due to symptoms of COVID-19, the district should request a medical certification. If the employee is taking
EPSL to care for a child after the closure of a childcare facility or school, the district may request evidence of the closure. This documentation may just be a posting on a local or state government website; for example, if the local municipality has issued a stay-at-home order closing all non-essential businesses, then the employee would need only provide a copy of (or link to) that order to show closure of a child care facility. Likewise, an email received from the school or facility would
suffice. With all school districts closed to physical classes through at least May 4, 2020, and an executive order from Governor Abbott limiting activities statewide to essential services, this will likely only be an issue with closures in place after the executive order is lifted. Nevertheless, the district should ensure it has some type of documentation on file.
15. Q: What type of documentation should a district request from an employee seeking to use expanded family and medical leave?
A: A district may ask an employee to provide evidence of the closure of a school or childcare facility and would request the same type of information described in the answer to Question 12, regarding employee use of EPSL for childcare purposes.
16. Q: If an employee is taking emergency paid sick leave because he or she is experiencing symptoms of COVID-19, should I still follow the district’s procedures to designate the employee for FMLA?
A: Probably so. If the employee otherwise meets the criteria for FMLA leave (COVID-19 likely would), the district should follow the usual process to designate the employee for FMLA, with the caveat that some flexibility in the process might be appropriate, and the designation might not occur for days (or even weeks) after the leave commenced.
17. Q: Are school districts eligible to claim payroll tax credits to reimburse the costs of paid leave under EPSL or expanded FMLA?
A: No. FFCRA specifically excludes public sector employers from being able to receive reimbursement through payroll tax credits. Districts may be eligible to receive money from the Coronavirus Aid, Relief and Economic Security Act (CARES Act), but this funding is unrelated to paid leave requirements under the FFCRA. We will provide an update as soon as DOL publishes additional guidance for
public employers. For more information from DOL, please see www.dol.gov/agencies.
18. Q: Must employers provide notice to employees of their right to Emergency Paid Sick Leave?
A: Yes. The law requires employers to post notice in the workplace regarding the requirements of the Emergency Paid Sick Leave Act where notices to employees are usually posted. The Department of Labor has developed a model notice that can be found at: www.dol.gov.
Article written by Michael Roseberry.
