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Family or Medical Leave and COVID-19

As new waves of the Coronavirus continue to cause illness and death in the U.S., and early legislation providing medical leave protections end, families struggle to stay home from work when sick and to care for family members.

This article explains the various U.S. legislative statutes were put in place during the COVID crisis and the situation the U.S. finds itself in today. Note: Government response to the COVID crisis is constantly changing at both the federal and state levels. The Department of Labor provides the most up-to-date information on COVID protections. 

The Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) was instituted in 1993 to ensure medical leave for workers who are sick or who need to care for sick immediate family members. The FMLA provides covered workers with up to 12 weeks of unpaid leave a year and ensures that group health benefits continue throughout that time.

FMLA does NOT cover all workers. It covers public employees of local, state, and federal agencies and schools. It covers private-sector employees who work for companies that employ 50 or more workers at least 20 weeks in the current or preceding calendar year.

According to JP Morgan Chase, in 2014, 48% of U.S. workers worked for small businesses. Some 89% of those businesses had fewer than 20 workers. So, a sizeable portion of the U.S. workforce has no federally guaranteed right to medical leave. (Private employers may, of course, choose to offer medical and family leave even if they are not required to do so.)

With a highly infectious disease such as COVID, it was critical that workers have the ability to stay home when exposed or ill. The federal government took action to expand paid leave with new legislation.

Families First Coronavirus Response Act of 2020

Enacted: March 18, 2020. Effective: April 2, 2020. Expired December 31, 2020

The Families First Coronavirus Response Act (FFCRA) provided refundable tax credits to reimburse employers dollar-for-dollar for the cost of providing paid sick and family leave wages. The tax credit benefit extended through September 30, 2021. It was offered to private companies with fewer than 500 workers, and public agencies of all sizes.

FFCRA leave did not allow someone to take time off to prevent getting infected with the coronavirus, unless they were under quarantine, isolation, or stay-at-home orders.

The FFCRA contained two important Acts:

Emergency Paid Sick Leave Act (EPSLA)

This expansion of the FFCRA required private employers with 500 employees or fewer (and all public agencies) to provide full-time eligible employees with 10 days, or 80 hours of paid sick leave. Part-time employees were provided paid sick leave equal to a typical two-week work period.

The worker would receive full pay for this extra sick time but the amount the worker could be paid was capped at a daily maximum of $511 per person, and $5,110 in total.

Workers would be paid if they were unable to work due to:

  • Federal, state, or local quarantine or isolation orders
  • Self-quarantine (recommended by a health professional)
  • Waiting for results of a COVID test
  • Showed symptoms of COVID-19 or caring for someone with symptoms

Small businesses with fewer than 50 employees (most small businesses) could be exempt from the requirement if it jeopardized the business. Employers of healthcare providers and emergency first-responders were also exempt from providing qualified sick leave.

Emergency Family and Medical Leave Expansion Act (EFMLEA)

This expansion provided up to 12 weeks of paid family leave (10 weeks paid, two weeks unpaid) for workers caring for children whose school or daycare had closed due to COVID-19. The pay was typically two-thirds of the workers' standard pay rate, with a maximum daily rate of $200/day and $2,000 in total, per person. The employee needed to have been employed at least 30 days. Some companies expanded their time off or required hours to make room for childcare.

Coronavirus Aid, Relief, and Economic Security Act (CARES Act)

Enacted: March 27, 2020. Expired September 6, 2021

The Coronavirus Aid, Relief, and Economic Security Act (CARES) was a $2.2 trillion package of federal loans aimed at helping small- and medium-sized businesses stay in operation. It clarified the payment limits for people receiving COVID-19-related sick leave. It also gave longer family or medical leave to anyone who was laid off or fired after March 1, 2020, who was going to be re-hired by the same company before December 31, 2020.

The CARES act "fixed" some mistakes and vagueness in the FFCRA. It also created new programs involving loans, tax credits, and unemployment. Small companies with less than 50 employees could still make some of their own rules about COVID-19 sick leave.

American Rescue Plan Act (ARPA)

Enacted: March 2021. Effective: April 1, 2021. Expired September 30, 2021

Under the American Rescue Plan Act (ARPA), employers with fewer than 500 employees and government employers could apply for tax credits to be reimbursed for the cost of paid family leave for employees unable to work due to any of the reasons listed in the EPSLA. Reimbursement was amended to up to $200 per day or $12,000 in total.

It made equivalent tax credits available for some self-employed people. And it covered household workers, such as maids or au pairs, employed by a household employer. (A household employer is considered to be an employer if the worker is "economically dependent" on the household employer for the opportunity to work.)

COVID-Related Leave After Sept 30

Despite very high COVID infection rates in many areas of the U.S., all supplemental federal support for COVID-related medical leave and childcare leave ended on October 1, 2021. Unless an employer has established its own COVID-related leave policy, workers must now use unpaid FMLA leave and vacation time.

Without paid leave and job protection, sick workers who are experiencing minimal symptoms themselves have little incentive — and a strong disincentive — to stay home.

The CDC has advised that employers who do not offer sick leave may want to draft a non-punitive emergency sick leave policy. A Kaiser Family Foundation survey found that 37% of workers surveyed worked for an employer who had expanded or started a paid sick leave program. Only 1% reported their sick leave had been eliminated or reduced.

At least 16 states and 20 municipalities have enacted permanent paid sick leave laws. This list includes California, Colorado, Massachusetts, Nevada, New York, Los Angeles, Oakland, Pittsburgh, and Washington, DC. In California, the sick leave and caregiving time is unpaid but employees may qualify for disability insurance from the state.

Colorado passed COVID sick-leave protections in 2020. Employees can earn up to six days of paid sick leave per year. If local, state or federal officials declare a public health emergency, employers must supplement accrued leave up so workers have up to two weeks of paid leave for COVID-related reasons. (This legislation does have an end date but may be continued.)

For Colorado workers, once that time is used – for quarantine, or illness, or providing care to an ill family member – it's gone. Then the employee must use paid time off, if they have any.

Worried About Your Right to Medical Leave? Ask an Attorney

If you believe that you have been treated unfairly by your employer when you needed to take medical or family leave, talk with an employment law attorney in your area. This lawyer will be aware of your state's laws as well as federal statutes to protect employees.

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