As employees prepare for the upcoming school year with COVID-19 risks looming over their heads, there are a number of questions about what-ifs and associated leave options.
While we can’t predict what’s ahead, we can provide this guidance.
If my child’s school gets shut down this fall due to COVID-19, will I be able to take Emergency Paid Sick Leave per the FFCRA?
The FFCRA allows employees (who work for employers with fewer than 500 employees) to take up to 2 weeks (80 hours) of emergency paid sick leave, and up to 12 weeks of emergency family medical leave (EFMLA) — 10 weeks of those 12 being paid — for employees who are unable to work due to their child’s school or day care being closed. This 12-week leave was enacted April 1, 2020 and is eligible to be taken anytime through December 31, 2020.
However, similar to the traditional Family Medical Leave Act (FMLA), the 12 weeks of EFMLA leave is the maximum amount of leave that can be taken in a 12-month period. If you took 12 weeks of EFMLA leave in the spring during the onset of the COVID-19 pandemic and then are forced to stay home with your child again in the fall, the EFMLA leave will have already been exhausted.
While the FMLA and EFMLA are two separate acts, 12 weeks of leave is the maximum amount that can be taken by an employee in a given year. In other words, there is no additional 12-week FMLA leave available if EFMLA leave has already been exhausted, nor would there be any EFMLA leave available if you took 12 weeks of FMLA leave in January for your new baby UNLESS your employer uses a 12-month period that differs from the calendar year.
What would be an example of a 12-month period that differs from the calendar year to be able to take more FMLA leave??
The FMLA allows employers to determine their own 12-month period for employees taking FMLA leave. This may be:
- The calendar year (January 1 – December 31)
- Any fixed 12 months (perhaps the fiscal year or employee’s anniversary date)
- The 12-month period measured forward from the first date an employee takes FMLA leave.
- For example, Lucia’s FMLA leave began on April 6, 2020 so her 12-month period is April 6, 2020 through April 5, 2021.
- A “rolling” 12-month period measured backward from the date an employee uses FMLA leave.
- For example, Patricia requests two weeks of FMLA leave to begin on November 1, 2020. Her employer looks back 12 months (from November 1, 2020 to November 2, 2019) and sees that Patricia had taken four weeks of FMLA leave beginning January 1, four weeks beginning March 1, and three weeks beginning June 1. Patricia has taken 11 weeks of FMLA leave in the 12-month period and only has one week of FMLA-protected leave available.
An employer may choose which method they prefer to calculate a 12-month period, assuming there is no state law requiring a specific method, but must apply this measurement consistently and uniformly for all employees. If no method is selected, the 12-month calculation that is most beneficial to employees will be used.
Can I still receive emergency paid sick leave if I’ve exhausted my EFMLA/FMLA leave?
Yes. Qualifying employees are eligible to take up to 80 hours of emergency paid sick leave, even if they’ve exhausted all their EFMLA/FMLA leave. If an employee used any portion of the 80 hours of Emergency Paid Sick Leave prior to using EFMLA, they will only be able to use the remaining balance. The 80 hours of Emergency Paid Sick Leave may only be used once either continuously or intermittently.
How many times can I request emergency paid sick leave?
The FFCRA specifies employees are eligible for up to 2 weeks (80 hours) of Emergency Paid Sick Leave. In other words, there’s no limit to the number of times you can request it, but rather an hour limit of how much is available.
For example, Milo was asked to quarantine in April because a family member had tested positive for COVID-19. If he only took 30 hours of emergency paid sick leave during that quarantine because he was able to work intermittently from home, Milo has 50 hours balance available in the event he again qualifies for emergency paid sick leave prior to December 31, 2020.
Can I take intermittent EFMLA?
Yes, intermittent leave is acceptable as long as your employer allows it. Employers and employees are strongly encouraged to work collaboratively to meet mutual needs during the unusual circumstances of this pandemic.
If I don’t take EFMLA or Emergency Paid Sick Leave, can I use paid time off (PTO) or paid vacation/sick leave if my child’s school or day care is closed?
This will need to be determined by your employer, as it will largely depend on your company’s circumstances and business needs, as well as your company’s paid leave policy.