By: Matthew S. Disbrow
Q: I am planning to reopen my business after the stay-in-place order is lifted. What leave am I required to give to employees related to the COVID-19 pandemic?
A: Even after the stay-in-place order lifts, employers need to be aware that certain leave requirements related to COVID-19 will remain in effect. In addition to normal leave under the Family and Medical Leave Act (FMLA) and Michigan’s Paid Medical Leave Act (PMLA), both the state and federal governments have passed legislation or issued executive orders extending leave entitlements related to the coronavirus.
Leave under the Families First Coronavirus Response Act (FFCRA)
On March 18, 2020, Congress passed the FFCRA, which provides substantial changes to federal leave laws and will remain in effect until at least the end of this year. The FFCRA creates two additional types of leave, including the Emergency Family and Medical Leave Expansion Act (EFMLA) and the Emergency Paid Sick Leave Act (EPSLA).
The EFMLA provides leave entitlement for employees who cannot work or telework due to the need to care for a son or daughter whose school or place of care has been closed because of COVID-19. This new expanded FMLA leave benefit is also referred to as Public Health Emergency Leave, and it applies to employers with fewer than five hundred employees. Covered employers are required to pay employees on a Public Health Emergency Leave, after the first two weeks of unpaid leave, at two-thirds of their regular compensation, up to $200 per day, and $10,000 in the aggregate. As with other FMLA leaves, the total amount of leave available is twelve weeks. Employees are eligible for Public Health Emergency Leave after thirty days of employment.
The EPSLA requires covered employers to provide up to eighty hours of paid sick leave for employees who are absent due to COVID-19 related reasons. The amount of pay is capped at $511 for each day of emergency paid sick leave and $5,110 in the aggregate, for a personal leave. On the other hand, if leave is taken to care for a family member, the pay is capped at $200 per day or $2,000 in the aggregate. Like the EFMLA, the EPSLA only applies to employers with fewer than five hundred employees. Employees are eligible for EPSLA leave immediately upon hire.
Importantly, employers are able to take a credit against the employer-portion of certain taxes to offset the amount they are required to pay out under these new leave laws. The FFCRA leave obligations are scheduled to end on December 31, 2020.
Leave under Executive Order 20-36
On April 3, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 20-36, which prohibits employers from discharging, disciplining, or otherwise retaliating against certain employees who stay home from work for COVID-19 reasons. The Order requires employers to treat such employees as if they were taking a medical leave under the PMLA.
The Order creates protections for employees with varying levels of COVID-19 symptoms or possible contact with the virus. The Order defines the principal symptoms of COVID-19 as fever, atypical cough, or atypical shortness of breath. “Close contact” with the virus is defined as being within six feet of an individual for a prolonged period of time. For each category of protected individuals, the possible return to work date is based on elapsed time (or a negative test, in one category). The protected categories of employees, and their allowed time away from work are as follows:
Q: I am planning to reopen my business after the stay-in-place order is lifted. What leave am I required to give to employees related to the COVID-19 pandemic?
A: Even after the stay-in-place order lifts, employers need to be aware that certain leave requirements related to COVID-19 will remain in effect. In addition to normal leave under the Family and Medical Leave Act (FMLA) and Michigan’s Paid Medical Leave Act (PMLA), both the state and federal governments have passed legislation or issued executive orders extending leave entitlements related to the coronavirus.
Leave under the Families First Coronavirus Response Act (FFCRA)
On March 18, 2020, Congress passed the FFCRA, which provides substantial changes to federal leave laws and will remain in effect until at least the end of this year. The FFCRA creates two additional types of leave, including the Emergency Family and Medical Leave Expansion Act (EFMLA) and the Emergency Paid Sick Leave Act (EPSLA).
The EFMLA provides leave entitlement for employees who cannot work or telework due to the need to care for a son or daughter whose school or place of care has been closed because of COVID-19. This new expanded FMLA leave benefit is also referred to as Public Health Emergency Leave, and it applies to employers with fewer than five hundred employees. Covered employers are required to pay employees on a Public Health Emergency Leave, after the first two weeks of unpaid leave, at two-thirds of their regular compensation, up to $200 per day, and $10,000 in the aggregate. As with other FMLA leaves, the total amount of leave available is twelve weeks. Employees are eligible for Public Health Emergency Leave after thirty days of employment.
The EPSLA requires covered employers to provide up to eighty hours of paid sick leave for employees who are absent due to COVID-19 related reasons. The amount of pay is capped at $511 for each day of emergency paid sick leave and $5,110 in the aggregate, for a personal leave. On the other hand, if leave is taken to care for a family member, the pay is capped at $200 per day or $2,000 in the aggregate. Like the EFMLA, the EPSLA only applies to employers with fewer than five hundred employees. Employees are eligible for EPSLA leave immediately upon hire.
Importantly, employers are able to take a credit against the employer-portion of certain taxes to offset the amount they are required to pay out under these new leave laws. The FFCRA leave obligations are scheduled to end on December 31, 2020.
Leave under Executive Order 20-36
On April 3, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 20-36, which prohibits employers from discharging, disciplining, or otherwise retaliating against certain employees who stay home from work for COVID-19 reasons. The Order requires employers to treat such employees as if they were taking a medical leave under the PMLA.
The Order creates protections for employees with varying levels of COVID-19 symptoms or possible contact with the virus. The Order defines the principal symptoms of COVID-19 as fever, atypical cough, or atypical shortness of breath. “Close contact” with the virus is defined as being within six feet of an individual for a prolonged period of time. For each category of protected individuals, the possible return to work date is based on elapsed time (or a negative test, in one category). The protected categories of employees, and their allowed time away from work are as follows:
The Order applies even to employers who are exempted from the PMLA’s requirements, though such employers are only required to provide unpaid leave. If an employee does not have paid leave under the PMLA, or has exhausted such leave, the leave may be unpaid. If an employee has accrued leave available under the PMLA, an employer can require the employee to use paid leave.
Employers are prohibited from discharging, disciplining, or retaliating against an employee in a protected category for staying at home. Employers are also prohibited from taking adverse actions against an employee for failing to comply with a documentation requirement of close contact with an individual with one or more of the principal symptoms of COVID-19.
These new leave obligations are somewhat complex, and new guidance regarding their application continues to be published by the respective enforcement agencies, as facts on the ground change. Because of these and other considerations, it may be wise to seek legal guidance before implementing any COVID-19-related leave policy or denying an employee any leave request related to COVID-19.
Employers are prohibited from discharging, disciplining, or retaliating against an employee in a protected category for staying at home. Employers are also prohibited from taking adverse actions against an employee for failing to comply with a documentation requirement of close contact with an individual with one or more of the principal symptoms of COVID-19.
These new leave obligations are somewhat complex, and new guidance regarding their application continues to be published by the respective enforcement agencies, as facts on the ground change. Because of these and other considerations, it may be wise to seek legal guidance before implementing any COVID-19-related leave policy or denying an employee any leave request related to COVID-19.
