What Do I Do Now? Life In the Time of Coronavirus

It is not an understatement to say that we are dealing with unprecedented circumstances, at least in modern times.  The truth is that no one really knows what happens next or where we go from here, but many states and the federal government are trying to help workers as quickly as possible, and the changes are happening on almost a daily basis.

There are some important changes that have happened to the Family Medical Leave Act and unemployment law in the State of Michigan. Today, we will summarize the changes to the laws covering medical leave.

FFCRA

Prior to this week, the Family Medical Leave Act required employers to allow you to take unpaid leave from work for a specific time period.  However, that all changed on this past Monday. On March 23, 2020, Congress passed the Families First Coronavirus Response Act (“FFCRA”) which requires that certain employers provide their employees with expanded family and medical leave for specified reasons related to COVID-19.  Here are key parts of the new law:

A. What is Covered?

COVID-19 LEAVE FOR ALL EMPLOYEES (regardless of time with employer):

    • Two weeks (up to 80 hours) of expanded family and medical leave at the employee’s regular rate of pay, if the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
    • Two weeks (up to 80 hours) of expanded family and medical leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

COVID-19 CHILD CARE LEAVE FOR EMPLOYEES WORKING FOR AT LEAST 30 DAYS: 

    • Employees who have been with an employer for at least 30 days prior to the effective date of law are eligible for up to an additional 10 weeks of expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

B. Who is covered?

The expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. Federal government employees are not included unless they are covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability, if the leave requirements would jeopardize the viability of the business as a going concern.

C. What conditions are covered?

Under the expended act, an employee who works for a “covered employer” is entitled to leave where the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

D. How much time do I have?

For reasons (1)-(4) and (6) above: A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5) above: A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

E. How is my pay calculated?

For leave reasons (1), (2), or (3) above: employees taking leave will be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For leave reasons (4) or (6) above: employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For leave reason (5) above: employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).

F. Who is enforcing the new law?

Because the new FMLA expansion includes payment provisions – unlike the prior law – paid leave requirements will be enforced by the Department of Labor’s Wage and Hour Division.

G. When does it go into effect and how long will it last?

These provisions go into effect April 1, 2020 and will remain in effect (barring any changes) through December 31, 2020

H. What about the other FMLA laws I heard about before this?

If a requirement was not specifically changed by this new law – the FFRCA – or if you are seeking to take leave for another basis other than as a result of COVID-19, then this new law has not changed or done away with any of those requirements.

I hope this helps you understand some of the new changes to family medical leave as a result of the COVID-19 pandemic.

If you have any questions at all, please do not hesitate to contact Attorney Carla D. Aikens. Give us a call or shoot us an email.  We will get through this together.