Updated -- HR 6201 Requires School and Community College Districts to Grant Paid Leave Due to COVID-19

03.20.2020, updated 03.25.2020, updated 3.30.2020

UPDATE, March 30, 2020: The US Department of Labor has again updated the Questions and Answers guidance to address additional scenarios/questions, including, of particular note, intermittent leave.  With respect to intermittent leave, the US DOL guidance indicates:

• Expanded FMLA leave may be taken on an intermittent basis so long as the employer approves it.
• Emergency Paid Sick Leave can be used on an intermittent basis so long as the employer allows it and the employee is teleworking.
• An employee who is working at a site (as opposed to teleworking) and requests to use Emergency Paid Sick Leave on an intermittent basis to care for a child whose school or childcare is closed or unavailable “due to COVID-19 precautions,” may do so only if the employer agrees.
• Emergency Paid Sick Leave cannot be taken on an intermittent basis and must be taken in full-day increments for reasons related to the employee’s own quarantine/isolation, symptoms, or because caring for someone subject to quarantine/isolation. The US DOL notes that the intent of FFCRA is to provide such paid sick leave as necessary to keep the employee from spreading the virus to others. In these situations, the employee must continue to take paid sick leave each day until either (1) the employee uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave. Any remaining emergency sick leave can be used at a later time until December 31, 2020, if another qualifying reason occurs.

In any case, the US DOL encourages employers to be flexible with these intermittent leave requests.

US DOL continues to add to its Q & A, which as of this update (March 30, 2020) addresses 59 separate questions, involving various scenarios and issues, including coordination of leave under FFCRA with other forms of employer-provided paid leave, and the definition of “emergency responder” for purposes of the FFCRA.  Employers are encouraged to revisit the US DOL Q & A frequently for any additional changes.

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UPDATE:  On March 24, 2020, the US Department of Labor published guidance explaining the emergency paid sick leave and expanded family and medical leave (paid childcare leave) under HR 6201, the Families First Coronavirus Response Act (FFCRA).  The US DOL issued a news release, a Fact Sheet for Employees, a Fact Sheet for Employers, and a Questions and Answers document.  Of particular note, the US DOL clarified the effective date of the paid leave provisions of the FFCRA.  As stated in the guidance, “The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.”   

Although HR 6201 was signed into law on March 19, 2020, the US DOL guidance specifically indicates that paid leave already granted before April 1, 2020, will not count against an employee’s entitlement to emergency paid sick leave that is effective beginning on April 1, 2020.  The guidance provides additional clarification regarding calculation of pay for an employee who is taking paid childcare leave or emergency paid sick leave.

Public agency employers are encouraged to review the guidance.  Please contact us with any questions.

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03.20.2020

On March 19, 2020, the President signed into law HR 6201, the Families First Coronavirus Response Act.  This alert addresses the paid childcare and emergency paid sick leave provisions of the law, specifically as they apply to California school districts, community college districts, and county offices of education.  The law also provides for free coronavirus testing, expanding food assistance and unemployment benefits, and requires employers to provide certain additional protections for health care workers. 

Emergency Family and Medical Leave Expansion Act (Paid Childcare Leave)

Many employees are now entitled to paid leave for childcare purposes during the current state of emergency. HR 6201 temporarily adds a paid leave under normally unpaid FMLA, Public Health Emergency Leave.  Eligible employees who are unable to work or telework because their minor child’s school or childcare is closed or unavailable are entitled to 12 workweeks of leave.

1. An eligible employee unable to work (or telework) due to a need to care for a child because the school or childcare provider is closed or unavailable is entitled to 12 workweeks of leave.

a. The children must be under the age of 18.

b. The closure or unavailability must be due to a COVID-19-related public health emergency declared by a Federal, State, or local authority.

c. “School” is defined as “elementary” or “secondary” school.

d. “Child care provider” means a provider who receives compensation for providing child care services on a regular basis.

2. An employee is eligible if:

a. He or she has been employed for at least 30 calendar days.

b. The employer has fewer than 500 employees, or the employer is a public agency.

c. Certain “health care providers” and “emergency responders” are not eligible, but the law does not define these terms.

3. The employee is entitled to 12 workweeks of leave.

a. The first 10 days are unpaid unless the employee substitutes vacation, personal leave, or sick leave for unpaid FMLA.

b. The remainder of the leave is paid at not less than 2/3 pay, which shall not exceed $200 per day and $10,000 total.

As with all FMLA leave, employees are entitled to restoration to their position or an equivalent   upon conclusion of the leave. However, there is a limited exception to this provision for employers with fewer than 25 employees, if certain conditions are satisfied.

The law expires on December 31, 2020.

Emergency Paid Sick Leave Act

The Act additionally provides for emergency paid sick leave, as follows:

1. An employer, specifically defined to include a public agency, is required to provide emergency paid sick leave to an employee who is unable to work (or telework) for one of the following reasons related to COVID-19:

a. The employee is subject to a quarantine or isolation order by federal state or local government

b. The employee has been advised to self-quarantine by a healthcare provider

c. The employee is experiencing symptoms and seeking medical diagnosis

d. The employee is caring for someone subject to (a) or (b)

e. The employee is caring for a son or daughter whose school or childcare is closed or unavailable “due to COVID-19 precautions”

f. The employee is experiencing a “substantially similar condition” as specified by certain federal agencies.

An employer may elect to exclude an employee who is a healthcare provider or emergency responder from emergency paid sick leave.

2. Full-time employees get 80 hours of emergency paid sick leave; part-time employees get a prorated amount. Emergency paid sick leave does not carry over year-to-year.

3. Emergency paid sick leave is available immediately, regardless of how long the employee has been employed.

4. Compensation depends on the reason for emergency paid sick leave.

a. If the leave is because the employee is subject to a government order or healthcare provider’s recommendation for quarantine or isolation, the employee is paid based on the employee’s regular pay rate, up to a maximum of $511 per day and $5,110 in the aggregate.

b. If the leave is because the employee is caring for someone under quarantine or isolation, or because for a child whose school or childcare has closed or is unavailable, the employee is paid based on two thirds of the employee’s regular rate of pay, up to a maximum of $200 per day and $2,000 in the aggregate.

5. An employee may first use emergency paid sick leave before using any other paid leave provided by the employer. “An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses [emergency paid sick leave].”

6. An employer must post notice, in a conspicuous place, of the requirements of the Act. The Secretary of Labor will publish a model notice within 7 days.

7. Discrimination against an employee who takes emergency paid sick leave or files a complaint related to emergency paid sick leave is prohibited.

8. An employer who fails to provide emergency paid sick leave as provided by the Act is considered to have failed to pay minimum wage as required by the FLSA, and is subject to statutory penalties.

9. After the first workday of emergency paid sick leave, and employer may require an employee to follow reasonable notice

10. The law expires on December 31, 2020.

HR 6201 requires employers to provide paid leave to employees.  In return, as a general matter, employers receive a credit against payroll taxes under the Social Security Act.  However, many public agencies do not participate in Social Security, and even as to those that do, HR 6201 specifically excludes from the tax credit certain government employers, including particularly the government of any State or political subdivision or agency thereof.  The law thus appears to be in effect an unfunded mandate by the federal government for state and local governments to provide paid leave to their employees.  This may give rise to questions of federalism and state sovereignty under general constitutional principles that are established in Supreme Court precedents.  We note the issue here, as some readers may as well, but do not express an opinion, and we save further analysis of these questions for another day.

IMPACT ON SCHOOL AND COMMUNITY COLLEGE DISTRICTS

HR 6201 was written to apply to employers (as defined) generally, in both the private and public sectors.  The paid leave requirements of HR 6201 appear to be in addition to any forms of paid leave that an employer already provides to its employees, including, for example, the many forms of paid leave provided to employees under the Education Code or local collective bargaining agreements.  Circumstances of individual districts and categories of employees may vary significantly.  For example, many employees in many districts are continuing to work in order to provide essential education services in accordance with legislation and executive orders, whether at a district facility or remotely.  Such employees would as a general matter be eligible for leave under HR 6201.  Other employees have been sent home and are not working due to closures, but remain in paid status at least for the time being under the provisions of SB 117.  Such employees presumably would not have a need to access leave under HR 6201.   Many California school and community college districts are already engaged in discussions with employee organizations regarding the circumstances and terms under which employees will be permitted or required to take leave for reasons related to the COVID-19 pandemic, including whether such leave will be considered as sick leave or some other form of leave.  California school and community college districts should take into consideration the requirements of HR 6201 as they assess their available resources and determine what additional commitments they will make in this regard.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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