Congress Passes New Employee Leave Benefits for Those Affected By Coronavirus

The President signed the Families First Coronavirus Response Act (FFCRA) into law on March 18, 2020. The Act contains two provisions that provide for leave:

 1) Emergency Family and Medical Leave Expansion Act (EFMLEA)

The EFMLEA, which was created by the FFCRA, provides up to 12 weeks of protected leave if you are unable to work (or telework) because you have to take care of kids whose school is closed, or a child-care provider is unavailable because of COVID-19. The following guidelines provide details and conditions:

• You must have worked for your employer for 30 days.
• State employees are eligible but federal employees are generally not.
• Most* employees of private companies with less than 500 employees are eligible.
• The first 10 days are unpaid (but you can probably use the emergency paid sick leave outlined below during these 10 days).
• After the first 10 days, you get 2/3 your regular rate of pay, capped at $200/day, up to $10,000 (some variation for employees with different schedules).
• You must be returned to a same or similar job when you return to work (with some exceptions for employers with less than 25 employees who have to shut down because of the economic conditions).

* Small businesses (those with less than 50 employees) are allowed to ask for exemptions if the required leave would jeopardize their business.

The EFMLEA provisions are effective beginning April 1, 2020.

  2) Emergency Paid Sick Leave Act (EPSLA)

These benefits provide up to two weeks (80 hours) of emergency paid sick leave for full time employees and are pro-rated for part time employees. The following guidelines provide details and conditions:

• It does not matter how long you have worked for your employer, you are still entitled to this leave.
• The benefits are available immediately.
• State and federal employees are eligible.
• Most* employees of companies with less than 500 employees are eligible.
• You can receive regular pay up to $511/day, capped at $5,110, if any of the following conditions apply:
  • You are subject to a local, state or federal government quarantine or isolation order;
  • You are advised to self-quarantine by health-care providers; or
  • You are experiencing symptoms of COVID-19 and are seeking medical diagnosis.
• You can receive two-thirds your regular pay up to $200/day, capped at $2,000, if any of the following conditions apply:
  • You are taking care of an individual who has been quarantined or advised by a health-care provider to self-quarantine;
  • You are taking care of children because school or child-care is closed; or
  • You are experiencing any substantially similar condition specified by Health and Human Services.

* Small businesses (those with less than 50 employees) are allowed to ask for an exemption for providing sick leave to employees who are taking care of children because school or child care is closed if the required leave would jeopardize their business.

Benefits under the EPSLA apply to any leave taken beginning April 1, 2020.

You are entitled to this paid sick leave IN ADDITION TO whatever your employer offers and you do not have to exhaust your vacation or sick time before you take this leave. Your employer is prohibited from requiring you to do so. You are not required to find someone to work for you while you are absent.

Coronvirus (COVID-19) FAQs

Here are some commonly asked questions that described how these recently-passed laws impact Wisconsin families right now:

Q: My kids’ school is shut down and I have no one to watch my kids. Can I get fired if I don’t report to work?

A: No. You can request to use up to 12 weeks of protected emergency family medical leave, for which you are entitled to 2/3 of your regular pay after the first 10 days. You are also entitled to use up to 80 hours (if full time) of emergency paid sick leave and receive your regular pay up to $200/day capped at $2,000.

Q: Is my employer required to give me time off to take care of my kids if their school is shut down.

A: Yes. You can use emergency family medical leave or emergency paid sick leave. (see above for specific pay amounts under each law).

Q: I have been told to quarantine myself by my doctor. Am I entitled to any paid leave?

A: Yes. You can use up to 80 hours (if full time) of emergency paid sick leave and receive your regular pay up to $511/day capped at $5,110.

Q: I do not have symptoms of COVID-19 but am quarantining myself with no specific doctor or governmental orders in place. Am I entitled to any paid leave?

A: No.

Q: I am experiencing symptoms of COVID-19 and am trying to get a medical diagnosis but have not yet been diagnosed. Am I entitled to any paid leave?

A:  Yes. You can use up to 80 hours (if full time) of emergency paid sick leave and receive your regular pay up to $511/day capped at $5,110.

Q: I am caring for someone who has symptoms (or has been diagnosed with) COVID-19. Am I entitled to paid leave?

A: Yes. You can use up to 80 hours (if full time) of emergency paid sick leave and receive your regular pay up to $200/day capped at $2,000.

Q: I was laid off because of the economic impact on my employer. Can I apply for unemployment benefits?

A: Yes. The FFCRA does provide for additional funding for states’ unemployment systems. However, Wisconsin has not changed its eligibility requirements yet, which might cause a problem for some individuals. For example, because Wisconsin unemployment laws require a person to be “able and available” for work, if you are experiencing symptoms or are diagnosed with COVID-19, you aren’t technically “able and available” to work, which would make you ineligible for work.

Q: Do I have to go to work if I am scared of contracting COVID-19?

A: No, but technically, your employer could terminate your employment. Employees have many different concerns ranging from anxiety about contracting the virus to fears about potentially passing the virus on to a vulnerable person.  These are valid concerns and worth discussing with your employer. Many employers are working to implement work-from-home arrangements, or at least decreased exposure in the office by rotating employee schedules.

If you have any symptoms, you should notify your medical provider and your employer immediately and comply with all medical instructions.

If you are considered a high-risk or vulnerable person, you should also notify your employer immediately. You may also be able to request an accommodation, depending on whether you have an underlying condition that would qualify as a disability under state or federal law.

Q: Is COVID-19 a disability for which an accommodation can be requested?

A: Probably not in and of itself, but if you have other disabilities or if it triggers/causes a disability (as defined by law as limiting major life activities), you might be able to request an accommodation. It will depend on what accommodation you need and your essential job functions.

Q: Can I use my Short-Term Disability (STD) Insurance if I contract COVID-19?

A: Maybe. It will be governed by the terms of your policy but if you are quarantined and unable to work, it is likely STD benefits would be available.

If you have questions about your rights under the FFCRA or would like to discuss an employment situation, please contact us our Milwaukee office (414-271-8650) or our Madison office (608) 257-0040 to speak with an attorney, or email us via our contact form.