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What Leave Options are Available for Employees Who Need Time Off Because Their Child’s School or Place of Care is Closed Due to COVID-19?

Introduction to the Families First Coronavirus Response Act

On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law. Among other things, the FFCRA requires certain employers to provide its employees with paid leave for qualifying reasons related to COVID-19. Notably, both the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) permit employees to take paid leave to care for his or her son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons. If requesting leave for this reason, an employee can take up to twelve weeks of leave.

How do the EPSLA and EFMLEA work together?

As mentioned above, both the EPSLA and EFMLEA permit an employee to take paid leave to care for a child whose daily place of care is closed. The EPSLA offers eligible employees up to eighty hours of leave for this reason, while the EFMLEA offers up to twelve weeks of expanded family and medical leave for the same. The first two weeks of EFMLEA leave are unpaid, with the remaining ten weeks paid at two-thirds of the employee’s regular rate of pay, up to $200.00 per day. However, an employee can supplement the first two unpaid weeks of leave with emergency paid sick leave. Notably, when taking both emergency paid sick leave and emergency expanded family medical leave for this reason, the two Acts run concurrently; they cannot be taken separately.

However, if an employee qualifies for emergency paid sick leave for one of the other enumerated reasons permitted by the EPSLA, and the employee exhausts said leave, that employee is then permitted to take an additional twelve weeks of leave, with the first two weeks being unpaid, to care for his or her child whose school or place of care is closed. In this situation, the employee could choose to substitute the unpaid portion with earned or accrued paid leave, as determined by an employer’s leave policy. Similarly, if an employee has already exhausted his or her FMLA or EFMLEA leave, that employee is still permitted to take emergency paid sick leave pursuant to the EPSLA for a COVID-19 qualifying reason.

How do the EFMLEA and FMLA work together?

The EFMLEA temporarily expanded the permitted reasons for taking FMLA leave. However, some of the requisite eligibility requirements for the EFMLEA are different than the FMLA. For example, not all employees eligible for leave pursuant to the EFMLEA are eligible for FMLA leave pursuant to the FMLA’s original reasons for leave. Additionally, the parameters for what constitutes an “employee” and “employer” are different between the EFMLEA and FMLA.

Importantly, an employee’s eligibility to take EFMLEA leave depends on the employee’s previous use of FMLA leave during the preceding twelve-month period and the calculation method used by the employer to determine eligibility. Employees who have taken FMLA leave within the last twelve months may not be eligible for EFMLEA leave if they have exhausted all twelve weeks provided by the FMLA. Any leave taken pursuant to the FMLA will count towards an employee’s twelve weeks of leave under the EFMLEA. Additionally, employees are only permitted to take twelve weeks of EFMLEA leave total, even if the applicable time period for the EFMLEA extends over two FMLA periods due to the method of calculation used by the employer.

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 online or by calling us at (205) 319-9724.