Breaking Down Common Local Government Issues: the FMLA, FFCRA, EFMLEA, and EPSLA

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The Family and Medical Leave Act (“FMLA”) is a federal statute that provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons for up to twelve workweeks of leave in a 12-month period. Any public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs is determined to be a “covered employer” under the FMLA. Therefore, all municipal units are considered to be covered employers. The FMLA only requires covered employers to provide qualified employees with unpaid leave. Further, a covered employer may require the employees to use any accrued paid leave in conjunction as FMLA leave.

On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was signed into law. The FFCRA included two provisions that provide emergency leave to employees: the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). The FFCRA applies to all government employers with one or more employees. All local governments – counties, municipalities, and school districts – are subject to the FFCRA.

The EPSLA and EFMLEA are effective beginning April 1, 2020 and will expire on December 31, 2020. Similar to FMLA notice posting requirements, the FFCRA requires that employers maintain, in a conspicuous location, where notices to employees are customarily posted, in all work locations, a notice prepared or approved by the Secretary of Labor concerning the FFCRA language, FFCRA updates, or implementation of the FFCRA. The Department of Labor stated that notices via email, mail, the posting of the notice on an employee-facing intranet, or external website are acceptable as many work environments have shifted to work-from-home policies. Private employers that are in compliance with the FFCRA are provided a tax-credit for eligible employee’s salaries; however, government entities do not share this same benefit when in compliance with the FFCRA.

Under the FFCRA the employee’s benefits are under the same protections as provided by the FMLA. The FMLA protections for employee benefits is extended to employees while on EFMLEA and EPSLA leave. For healthcare purposes, the employer should treat the employee as if they are working. When employees are not yet eligible for their employment benefits (e.g., they were recently hired), the employers should count the time away from work towards the eligibility requirements if the employee is on leave for their health condition.

Concerns for the EPSLA:

All employees of a government entity, regardless of tenure, are entitled to emergency paid sick leave under the EPSLA. Under ESPLA, a local government is required to provide emergency paid sick leave to an employee who is unable to work (either under a normal work environment or work remotely) due to COVID-19, if the employee:

  1. Is subject to a federal, state, or local quarantine or isolation order;
  2. Has been advised by a health care provider to self-quarantine;
  3. Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. Is caring for an individual subject to quarantine or isolation;
  5. Is caring for a child whose school or child care facility is closed, or if the childcare provider is unavailable due to COVID-19 precautions; or
  6. Is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.

Local government employees are entitled to two weeks of paid sick leave. This is the equivalent of 80 hours at the employee’s regular rate of pay. For part-time employees, they are entitled to two-weeks of pay based on the number of hours the employee works on average over a two-week period. An employee’s salary or wages under this leave of absence are determined by which of the above six reasons are applicable to their emergency leave. An employee would be entitled to their full salary/wages if the situations in 1 through 3 from above are applicable. If situations 3 through 6 are applicable, then the employee is entitled to 2/3 of their salary/wages. An employee’s salary/wages are restricted to no more than $511 per day ($5110 for the two-week period) when they are dealing with their own illness or quarantine. When an employee is taking their leave to provide care for a child, their salary/wages are restricted to no more than $200 per day ($2,000 for the two-week period). Local governments may not require an employee to first exhaust any leave that is granted pursuant to their typical employee policies prior to the employee seeking/taking emergency paid sick leave under the EPSLA.

Concerns for the EFMLEA:

A full-time or part-time employee who has been employed by the local government for 30 days prior to taking leave under the EFMLEA is eligible for protections that are provided by the EFMLEA. There are no minimum hours requirements or work duration under the EFMLEA; this alleviates the requirements for this purposes under the FMLA. The EFMLEA provides employees with a 12-weeks job-protected leave if the employee is unable to work (in their normal work environment or remotely) because the employee is providing necessary care for their minor child. The minor child’s school, childcare facility, or childcare provider must have been closed or unavailable due to COVID-19.

Under the EFMLEA, the first 10 days of leave are unpaid. However, an employee may exercise any other existing pay benefit during the unpaid 10-day period. The employee can use the two-weeks paid period pursuant to ESPLA. The paid leave period provided by the ESPLSA runs concurrently with the leave the employee is entitled to under the EFMLEA. After the initial unpaid period under the EFMLEA, the employee is paid 2/3 of their regular salary/wages for the remaining 10-weeks. Similar to the caps on salary and wages for the EPLSA, a full-time employee’s salary/wages are restricted to no more than $200 per day ($10,000 for the total leave period). Part-time employees are subject to the same salary/wage restrictions and are entitled to be paid 2/3 of their usual salary/wage for their average number of hours worked in the prior six months.

It is important to note that the EFMLEA leave is not in addition to 12-weeks leave under the FMLA but only adds new eligibility requirements. The 12-weeks of job-protected leave under the EFMLEA counts towards the 12-weeks of job-protected leave under the FMLA. The EFMLA only offers these protections for an employee who is providing care for a close family member under quarantine/isolation or providing care for a minor child if the child’s school or place of childcare has close or is unavailable due to COVID-19. The EFMLEA does not provide a leave benefit for the employee’s own hospitalization but the employee maybe eligible for protections under the regular FMLA for such purposes.

A local government is required to return/restore the employee, who took a leave of absence under the EFMLA, to their position upon their EFMLEA return, just as an employer is required to under the normal FMLA.

COVID-19 has caused some unprecedented problems. The solutions provided are complex in order to navigate these difficult times. If you are a local government agency, elected official/department head, or a private business and need guidance with the FFCRA, EFMLEA, or ESPLA give the attorneys at Banks & Brower a call at 317-870-0019 to go over some of your options.