Coronavirus (COVID-19): Sick Leave and Extended Child Care Leave for Employees

Last Updated On: 4/6/2020 1:02:42 AM

Overview 

 On March 18, 2020 Congress passed the “Families First Coronavirus Relief Act.”  This bill created two limited benefits for people who remain employed during the coronavirus emergency:

  • A two-week paid sick leave benefit, at 100% regular pay; and 
  • An extended Family Leave benefit for people who have to stay home to care for kids whose schools or daycare are closed, at two-thirds regular pay.   

As the coronavirus situation got worse, Congress passed another coronavirus bill, called the CARES Act.  This bill provided a lot more help for people, through the Unemployment Compensation system.  Legal Aid has a separate FAQ explaining what is available through the Unemployment Compensation system.

We believe the vast majority of people losing income because of coronavirus will be better off using the CARES Act Unemployment Compensation benefits.  The Sick Leave or the extended Child Care Leave probably won’t be the best choice for most people. We are providing these FAQs about the Paid Sick Leave and the extended Child Care Leave so you can make your own choice about what’s best for you.  Consider your choices.  Talk to your employer.  Decide which options are best for you and your family.  

FEDERAL TWO WEEKS PAID SICK LEAVE BENEFIT

Congress passed the “Families First Coronavirus Relief Act” on March 18. Among other helpful pieces, this new law gives many workers two weeks of Paid Sick Leave. This applies even if their employer does not normally pay for sick leave.

Do all employees get the federal Two Weeks Paid Sick Leave benefit?

No. There are two possible exceptions.

First, if your company has more than 500 employees total, then the federal Two Weeks Paid Sick Leave benefit will not apply to you. For whatever reason, Congress decided not to give the federal Two Weeks Paid Sick Leave to employees of big companies. Those employees will get whatever paid sick leave their employer has already agreed to provide.

Second, if your company has less than 50 employees, the company may be able to get an “exemption” from the federal Two Weeks Paid Sick Leave benefit. We do not know yet how this will be decided, and what factors will be considered in giving exemptions to some small companies but not to others.

If I’m covered by the federal Two Weeks Paid Sick Leave benefit, does it cover my full normal rate of pay?

Some employees will get full pay. Some employees will get only partial pay. It depends on the reason that qualifies them for getting Sick Leave at all.

How much is the “full pay” federal Two Weeks Paid Sick Leave benefit?

These employees can receive their full normal pay, up to but not more than $511 per day. That would be roughly $10,000 per month.

Who is eligible for the full pay federal Two Weeks Paid Sick Leave benefit?

The “full pay” (not more than $511 per day) benefit is for:

  • Employees who are subject to a government quarantine or isolation order related to the coronavirus;
  • Employees who have been advised by a health care provider to self-quarantine due to concerns related to the coronavirus; and
  • Employees who are experiencing symptoms of coronavirus and are seeking a medical diagnosis.

How much is the partial pay federal Two Weeks Paid Sick Leave benefit?

These employees can receive two-thirds of their regular pay, up to but not more than $200 per day. [That would be roughly $4,000 per month.]

Who gets the partial pay federal Two Weeks Paid Sick Leave benefit?

The "two-thirds pay” (not more than $200 per day) benefit is given to the following employees:

  • Employees who are caring for individuals who are subject to a quarantine or isolation order, or an individual who was advised to self-quarantine by a health care provider;
  • Employees caring for a child whose school or care provider is closed or unavailable due to coronavirus precautions; and
  • Employees experiencing any other condition “substantially similar” to coronavirus, as defined by the US Department of Health and Human Services.

Who pays for the Two Weeks Paid Sick Leave?

Employers will be reimbursed by the federal government through the tax system. One reason for the large dollar amounts involved in these emergency laws is because the federal government will be covering the Two Weeks Paid Sick Leave benefit paid up front by the individual businesses.

I have other leave time available to me from my employer. Do I have to use that time first before I can use the federal Two Weeks Paid Sick Leave benefit?

No. An employer cannot require an employee to use other paid leave before using the federal Two Weeks Paid Sick Leave benefit.

Can my employer require me to find someone to replace me while I’m on the federal Two Weeks Paid Sick Leave benefit?

No. An employer who does this could be subject to penalties under the federal Fair Labor Standards Act.

Can an employer fire me, discipline me, or deny me a promotion or other job benefit because I used the federal Two Weeks Paid Sick Leave benefit?

No. An employer who does this could be subject to penalties under the federal Fair Labor Standards Act.

FEDERAL TWELVE WEEKS EXTENDED FAMILY & MEDICAL LEAVE ACT (FMLA) PARTIALLY-PAID CHILD CARE LEAVE BENEFIT 

The “Families First Coronavirus Response Act” passed on March 18 also included an extended FMLA leave for employees who have to care for a child (under age 18) whose school or daycare has closed due to a COVID-19 emergency.

Does the expanded FMLA Child Care benefit cover all employees?

No. Just like the Paid Sick Leave there are two limitations.

First, employees of a company with more than 500 employees are not eligible. For whatever reason, Congress decided not to give the extended FMLA Child Care benefit to employees of big companies. Those employees will get whatever paid sick leave their employer has already agreed to provide, or which the regular FMLA provides.

Second, small companies with less than 50 employees may be able to get an exemption if providing the benefit would jeopardize the company’s existence. We do not know yet how this will be decided, and what factors will be considered in giving exemptions to some small companies but not to others

Who is eligible for the expanded FMLA Child Care benefit?

The extended FMLA Child Care benefit is available to a person who is unable to work (or telework) because the employee must care for a child whose school or place of care has closed due to the COVID-19 coronavirus public health emergency.

What if my child has been diagnosed with COVID-19 and the school won’t let her return. Can I get the extended FMLA Child Care benefit?

Probably not. This benefit is available only where the child’s school or daycare facility is closed due to the COVID-19 coronavirus public health emergency.

If I am eligible for the extended FMLA Child Care benefit, can I get paid while I am off caring for my child?

Yes and no.

The first ten days are not paid under the extended FMLA Child Care benefit. You may be able to use the federal Two Weeks Paid Sick Leave benefit during this time, or any other accrued leave that your employer provides.

After the first ten days, you can be paid for any additional time required to care for your child while the school or daycare is closed.

How much can I be paid under the extended FMLA Child Care benefit?

After the first ten days, you receive paid leave of two-thirds of your regular rate, up to but not more than $200 per day. No matter what, you cannot be paid more than $10,000 total under the extended FMLA Child Care benefit. If you work part time, you receive two-thirds of your normal part-time pay.

If I take this extended FMLA Child Care benefit, will I still have a job when I return?

In general, Yes. Like the regular FMLA, an employee who takes the extended FMLA Child Care benefit is entitled to be restored to the position they held (or an equivalent position) when they started the leave.

However, this job protection does not necessarily apply to an employer with less than 25 employees. The small employer (fewer than 25 employees) does not have to return you to your old job if:

  • The position no longer exists because of changes in the employer’s economic condition caused by the coronavirus emergency; AND
  • The employer makes “reasonable efforts” to restore the employee to an equivalent job; AND
  • The employer makes an additional “reasonable effort” to contact the employee if an equivalent position does become available.

If the small employer (fewer than 25 employees) meets all three of these requirements, then it will not be obligated to restore the employee to her old job.

This is general legal information. For guidance about your situation, talk to a lawyer.