Labor attorney talks changes to FMLA and paid leave under CARES Act 

Emergency provisions to the Family Medical Leave Act and paid sick time are giving employees new access to needed paid time off as a direct result of the COVID-19 pandemic. 

Baker Donelson labor and employment attorney Jennifer Anderson provided an overview of the new Families First Coronavirus Response Act that took effect yesterday during a webinar hosted by NexusLA and the Louisiana Technology Park. 

New guidance was issued on the programs just yesterday by the Department of Labor and could continue to change, Anderson says. 

“I imagine everyone feels a little overwhelmed, I certainly do,” she says. “It’s tough for even the experienced labor and employment attorneys to keep up.” 

The two key provisions of the Families First Act are emergency expansions of FMLA and paid sick leave. Both sunset on Dec. 31 and are being interpreted uniformly by the Department of Labor, Anderson says. 

The emergency FMLA provisions open the program to those unable to work or telework because they need to care for a child under 18, or over 18 and unable to care for themself, as a result of the public health emergency. 

The program gives those employees 10 initial unpaid days off—or they can substitute paid sick leave— followed by 10 weeks of paid time off at two-thirds their regular pay, with a daily cap of $200. Employers cannot require employees to use paid sick time instead of taking unpaid days, Anderson says. 

To qualify, the company must have employed them at least 30 days before making the request.

Anderson notes the emergency order does not open up employees to an additional 12 weeks of FMLA time, it simply adds a new qualifying condition for the existing program. 

The provision extends the added FMLA conditions to all employers (nonprofits, and the public and private sector) with less than 500 employees. Anderson stressed these added provisions are temporary. 

There are exemptions under both programs for companies with less than 50 employees who can demonstrate that if they grant the paid time off: the cost of the paid leave would exceed revenue, the absence of the employee would risk the company’s financial health, or it would leave the company with insufficient workers to operate at minimum capacity.  

Anderson says the Department of Labor will most likely determine these exemptions on an employee-by-employee basis. 

“The way it’s written suggests to me … you could have a situation where one person has asked for leave, that person isn’t going to critically impact the business, but there’s someone else who will,” she says. 

Intermittent leave is also allowed under both programs, but only if an employer agrees to it and is generally limited to care reasons, Anderson says. 

Job restoration is also required. The Department of Labor is interpreting the law to say that an employee returning from leave must come back to an equivalent position. Yet there is an exception for companies with less than 25 employees if the job no longer exists because of the economic downturn. 

Employers have the right to ask for information about why the leave is needed, including a written or oral statement about why they’re unable to work. 

Employees are eligible for leave immediately under the emergency paid sick leave program. They can receive 100% of their regular pay rate (up to $511 per day) if they are out because they were given a government or health care provider issued quarantine/isolation order, or because they are experiencing symptoms of COVID-19 and are seeking a diagnosis. 

Employees can also get paid sick leave at two-thirds their normal rate (up to $200 per day) if they are out to care for someone in an isolation or quarantine order or who is experiencing symptoms, or if they are caring for a child. 

Furloughed employees are not eligible for paid leave, Anderson says. 

It’s unclear if the new Paycheck Protection Program will allow employers to use the money to pay for paid leave costs, LABI President Stephen Waguespack says, adding it likely won’t be covered. 

It’s more likely the treasury will push employers to take an advance on the tax credit for sick leave instead. But the question is still unclear, and that’s part of the banks’ larger frustrations with the lack of guidance on these issues, Waguespack says. 
Waguespack and U.S. Rep. Garret Graves answered more questions about provisions of the CARES Act in a webinar this morning hosted by Business Report.

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