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Families First Coronavirus Response Act Challenges: Employer and Employee Eligibility

Introduction

On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), which took effect on April 1, 2020, and will remain in effect through December 31, 2020. Among other things, the FFCRA seeks to assist both employees and employers affected by COVID-19.

The FFCRA includes, among other provisions, the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). Both provisions present a number of challenges, including when an employer should calculate its number of employees, whether an employee is actually eligible for leave, and how much leave each employee is entitled to receive.

Covered Employer: Employee Calculation

Although an employee may need to take leave under the EFMLEA and/or the EPSLA due to COVID-19, if the employer is not a “covered employer,” then the employer is not required to provide such leave. Under the FFCRA, a “covered employer” is generally an individual and/or entity that employs less than 500 employees. An employer must calculate the number of employees it currently employs each and every time an employee requests leave under the EFMLEA or EPSLA. The relevant time period for the calculation is the time at which the employee intends to take leave.

To illustrate this point, the United States Department of Labor (“DOL”), Wage and Hour Division (“WHD”), posted regulations to further clarify and expound upon the FFCRA, wherein they provided an example regarding two employees requesting leave at two different times. The example is as follows: If an employer employs 450 employees on April 20, 2020, and an employee is unable to work starting on that date because a health care provider has advised that employee to self-quarantine because of concerns related to COVID-19, the employer must provide paid sick leave to that employee. If, however, the employer hires 75 new employees between April 21, 2020, and August 3, 2020, such that the employer employs 525 employees as of August 3, 2020, the employer would not be required to provide paid sick leave to a different employee who is unable to work for the same reason beginning on August 3, 2020. Therefore, it is important that an employer note the date on which an employee will begin using leave.

Eligible Employee: Availability of EFMLEA Leave

Generally, under the EFMLEA, which amended the Family and Medical Leave Act (“FMLA”), an employee is entitled to receive up to twelve weeks of leave to care for one’s child if the child’s school or place of care is closed for reasons related to COVID-19. This does not add twelve weeks of leave to the twelve weeks provided under the FMLA, but, among other additions, adds a new reason that permits leave.

Thus, if an employee has already taken FMLA leave in the current twelve month leave year, the maximum twelve weeks of EFMLEA leave is reduced by the amount of FMLA leave taken in that year. For example, if an employee has used three weeks of FMLA leave prior to enactment of the FFCRA, and such leave occurred within the current FMLA time period in which the employee now seeks EFMLEA, an employee is only entitled to take up to nine weeks of EFMLEA leave.

Eligible Employee: Availability of EPSLA Leave

Under the EPSLA, an employee that qualifies for leave may receive up to 80 hours of paid sick leave. However, once an employee has used the 80 hours of leave, the employee cannot take any additional EPSLA leave. This is the absolute upper limit, calculated on a per person and not per job basis, thus even if an employee accepts employment with a new employer, he/she is not entitled to additional EPSLA leave.

However, if the employee changes employers before taking the full 80 hours of EPSLA leave, the new employer must provide paid sick leave until the employee has exhausted the remaining portion of the unused hours. For example, if an employee worked for Employer A and received 70 hours of paid sick leave under the EPSLA, but then leaves and begins working for Employer B, he/she is entitled to receive 10 hours of paid sick leave from Employer B. Once Employer B provides the remaining 10 hours, the employee is not entitled to any additional EPSLA leave.

If you feel your rights under the Families First Coronavirus Response Act have been violated, or if you have any questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Wrady Michel & King. You can contact us either online or by calling us at (205) 319-9724.