Important Clarifications offers by Emergency Paid Leave Regulations
April 6, 2020 — New regulations for the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act were issued late last week. They answer certain questions which many have had about these acts.
1. Certain Reasons for Leave Explained:
- Quarantine or Isolation Order by a Government: An employee may not take paid sick leave as a result of a shelter-in-place or a stay-at-home order if the employer does not have work for the employee as a result of the order.
Certain isolation orders, however, have advised certain categories of individuals (for example, by age or medical condition) to shelter in place or stay at home. If such an order makes an employee unable to work when work would otherwise be available to him or her, then the employee would qualify for leave under the Emergency Paid Sick Leave Act.
For example, Travis and Dallas Counties have prohibited people who are 60 years or older and people have certain health conditions (such as heart disease, lung disease, diabetes, kidney disease, and weakened immune systems) from going to non-essential group gatherings.
Likewise, Travis County has required household members of COVID-19 positive individuals, suspected positives, individuals being currently tested, and individuals with cough and/or fever to remain in home quarantine for no less than 14 days following the last exposure to an individual with confirmed or suspected COVID-19.
Harris County has not implemented such prohibitions in its Stay-at-Home Order.
- Quarantine Advised by Health Provider to Self-Quarantine: Such quarantine includes employees who are directed or advised to stay home because the health care provider believes that the employee is particularly vulnerable to COVID-19 due to other conditions such as diabetes and asthma.
- Caring for Son or Daughter: An employee qualifies for such leave if, due to COVID-related reasons, there is
- School closure;
- Child care closure; or
- Child care provider unavailable.
An employee make take this leave only when the employee needs to, and actually is, caring for his or her child. Generally, an employee does not need to take such leave if another suitable individual—such as a co-parent—is available to provide care.
The employee must provide his or her employer a representation documenting her or her need for the leave – such as a signed statement indicating that no other suitable person is available to provide childcare.
2. Taking paid sick leave or expanded family leave will not impact status and availability for other FMLA leave.
An employee, for example, can take 80 hours of paid COVID-19 sick leave and still have all 12 weeks of FMLA leave for a serious health condition or the birth of a child.
3. Part-Time Employee Leave Amount for Paid Sick Leave:
A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours.
4. Employer cannot force employee to take paid sick leave for first two (2) weeks of emergency FMLA childcare leave.
An employer cannot force an employee to take accrued, unused paid leave when using emergency sick leave or paid portion of emergency family leave.
5. Employee Notice to Employer:
An employee is not required to give employer notice of paid leave as soon as
practicable. It will be reasonable for an employer to require notice as soon as practicable after the first workday is missed. If an employee fails to give proper notice, the employer should give notice of such failure and an opportunity for the employee to provide proper documentation.
6. Healthcare and Emergency Responders.
Healthcare and emergency responders may be excluded from Paid Sick Leave and/or Expanded Family and Medical Leave by their employer under the FFCRA.
7. Small Business Exemption.
As a business with fewer than 50 employees, an employer can claim an exemption to childcare-related paid sick leave and expanded FMLA obligations if it determines that any of the following are true:
- Providing leave would result in your expenses and financial obligations exceeding available business revenues and cause your business to cease operating at a minimal capacity;
- The absence of the employee(s) requesting leave would entail a substantial risk to the financial health or operational capabilities of your business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee(s) requesting leave, and these labor or services are needed for you to operate at a minimal capacity.
If you take this exemption, you should document why your business meets the criteria set forth above.
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