Between April 2, 2020 and December 31, 2020, certain amounts of mandatory paid leave will be available to certain employees under federal law. This is the result of H. R. 6201, called the
Families First Coronavirus Response Act. But as usual, news reporting is weak and unclear, and the law itself is very technical and a mess to read. The law has eight sections and the text is forty-three pages long. And you basically need to already know what it says - and what both the Fair Labor Standards Act and Family Medical Leave Act say - in order to understand it.
Want to know what the law says in plain english? You are in the right place.
The law has some significant appropriations to health departments in the government, sections addressing free/reduced school lunch during Covid-19 school closures, unemployment insurance, free Covid-19 testing, and other important issues. But our focus right now will be on the sections dealing with leave.
There are two completely separate types of Covid-19 leave in the law. The first is broad but short, and gives two weeks paid leave for various Covid-19 impacts. The second is much longer, but deals only with leave to care for children during school/daycare closure. (A third section gives a tax credit to employers to pay for the leave. We won't be discussing it here.) The two provisions are very different, and so it is crucial to avoid getting the different requirements and benefits mixed up.
But at the outset it is important to note three big limits in the law. First, the law does not apply to large employers (more than 500 employees). Second, the application to small employers - those with fewer than 50 employees - is at this point a bit unclear (as will be discussed below). Third, it is also inapplicable to healthcare employees and those working in emergency response. With that said, let's get down to it.
DIVISION E: Two-weeks Covid-19 paid leave
You are entitled to two weeks of fully- or partially-paid coronavirus leave for any of the following reasons:
- You are issued an official quarantine order from any government body (full pay, but capped at a max of $511 per day)
- A treating doctor or nurse has advised you to self-quarantine (full pay, $511/day cap)
- You have symptoms of Covid-19 and are going to get diagnosed (full pay, $511/day cap)
- You are caring for someone (anyone?) on quarantine or self-quarantine under #1 and #2 above (2/3rds full pay, $200/day cap)
- You are caring for your son or daughter during a school/daycare Covid-19 closure (2/3rds pay, $200/day cap)
- Other circumstances (looks like HHS will make a rule defining this) (2/3rds pay, $200/day cap)
- 80 hours leave are provided for full-time employees, and the equivalent of two average weeks worth for part-time employees
- This is in addition to your normal sick leave. You are entitled to take this coronavirus leave FIRST, before you tap into any other sick leave you are entitled to. It also doesn't matter how long you've been working there, you have this leave available on your first day of employment.
- The remedial method is pretty interesting. It basically makes your regular rate of pay into your temporary
minimum wageduring this period, and gives you a minimum wage lawsuit to collect double damages (plus attorney fees!) for the time you were out on Covid-19 leave.
- You have the right to take this leave - and file a lawsuit to enforce your rights if necessary - without any fear of retaliation. If they do retaliate, you can sue for backpay as well as
pain and sufferingdamages.
- Employers must post a notice of your rights at the workplace. (DOL will put out a model notice by this time next week.)
Lastly, there is one great big caveat. The law authorizes DOL to issue a rule to exempt small employers when the leave
would jeopardize the viability of the business as a going concern. At this point, it is completely unknown what this will mean in practice. I have doubts that a blanket exemption of businesses with fewer than 50 employees would pass judicial review, but it is difficult to tell at this point how DOL (or the judiciary) is going to approach this issue.
DIVISION C: Longer leave for school/daycare closure due to the pandemic
The second type of leave is described in Division C of the Act. It provides for a longer period of leave (as under the FMLA), but it is only available if the
employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. In other words, this only covers leave to watch your child during a school closure. Leave for your illness or others' illnesses is still limited to the normal unpaid FMLA leave. This does not provide paid leave to avoid exposure or practice general
It also does not apply if you are able to telework. Which means that you will be expected to watch your children while working from home. (It is unclear how employer rules prohibiting this will be applied. If the employer has a rule which prohibits simultaneously teleworking while providing childcare, then the employee is probably eligible for Covid-19 leave from work for school closures. Practically, I expect this means the employers will suspend this rule during the outbreak.)
School-closure leave: Paid or unpaid? Both.
The first 10 days of school-closure leave is unpaid - likely because you are expected to take your general Covid-19 leave under Division E during this time. In addition, if you have accrued annual or sick leave you can use it during these ten days to get paid. After that, the leave is still only sorta paid leave. It is actually only 2/3rds pay - not full pay - and is capped at $200 per day and $10,000 total per employee during the closure.
School-closure leave: Employers and employees covered
Unlike the one-year period under the FMLA, leave under this section is available to
an employee who has been employed for at least 30 calendar days.
As for which employers are covered, on its face it initially looks like almost all will be. But this is an area where the language and intent of Congress has gotten awfully confused.
First of all, once again, mega employers with over 500 employees are not covered. And DOL is authorized to pass a rule exempting employers with fewer than 50 employees when the law
would jeopardize the viability of the business as a going concern.
Second and even more problematic, if an employer with fewer than 50 employees breaks the law, the employee cannot sue in court. Instead, it looks as though the only way the employee can enforce this part of the law against an employer with fewer than 50 employees is to bring a complaint with DOL and convince them to initiate an enforcement action.
One final note, by the way, I love Congress.gov. The Mississippi legislature should take note. Our legislature's methods, record-keeping and public information platforms are about a century out of date. In addition to its bizarrely session-focused procedures and deadlines, there is no legislative history, no real way to track what is happening and what it means. We should all be deeply embarrassed for them. I think it is time for a reboot.
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