Emergency Paid Sick Leave and
Emergency Family Medical Leave
By: Brian Casaceli
On April 1, 2020, two new federal employment laws took effect: the Emergency Family and Medical Leave Expansion Act (EFMLA) and the Emergency Paid Sick Leave Act (EPSLA or EPSL). The two laws – which apply to employers with fewer than 500 employees – were passed as part of the Families First Coronavirus Response Act and provide eligible employees with EPSL for purposes directly related to COVID-19 and EFMLA if the employee is unable to work or telework due to a need to care for the employee’s child under eighteen (or older than eighteen and is incapable of self-care because of a mental or physical disability) if the child’s school or place of care has been closed, or if the child care provider of the child is unavailable, due to a public health emergency.
Below are several Q/A’s that provide an overview of some notable provisions from the two laws.
Are all my employees eligible for EPSL and/or EFMLA?
All employees, regardless how long they have been employed by a brewery, are eligible for EPSL. To be eligible for EFMLA, employees must have been employed with the brewery for at least thirty calendar days.
What reasons can an employee take EPSL and/or EFMLA for?
Employees may use EPSL if the employee is unable to work or telework due to a need for leave because:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
(4) The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19, or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
An eligible employee may take EFMLA when the employee is unable to work or telework due to a need to care for the employee’s child who is under eighteen (or older than eighteen and is incapable of self-care because of a mental or physical disability) if the child’s school or place of care has been closed, or if the child care provider of the child is unavailable, due to a public health emergency.
How much EPSL are employees allowed to take?
Full-time employees are entitled to up to eighty (80) hours of EPSL. Part-time employees are entitled to EPSL for the number of hours the employee is normally scheduled to work over two workweeks. Additional considerations come into play when an employee does not work a normal weekly schedule.
How much EFMLA are employees allowed to take?
Employees are eligible for up to twelve (12) weeks of EFMLA. However, the EFMLA does not increase the total amount of FMLA time otherwise available to employees. For example, if an employee takes six weeks of EFMLA, he/she would only be eligible for six more weeks of FMLA qualifying leave (assuming the brewery is subject to the FMLA).
At what rate is the EPSL paid?
The employee’s EPSL will be paid at the greater of: (i) the employee’s regular rate of pay or (ii) the current minimum wage in the applicable state or locality (currently $12.75 per hour in Massachusetts).
If an employee uses EPSL for his/her own health (as set forth in 1, 2 & 3 above), the employee is entitled to receive the full amount of his/her regular pay (subject to the maximum amounts referenced below). If an employee uses EPSL for one of the other reasons (as set forth in paragraphs 4, 5 & 6 above), the employee’s sick leave will be paid at two-thirds the amount the employee would receive if he/she had used EPSL for his/her own health (subject to the maximum amounts referenced below).
What about EFMLA?
The first ten working days of EFMLA may be unpaid. During this time, employees may, but are not required to, use accrued vacation, personal leave, or paid sick leave, including EPSL.
Following the initial ten-day period, an employee’s EFMLA will be paid in an amount that is at least two-thirds of their regular rate of pay subject to the cap referenced below. Employees are entitled to receive such paid leave only for the number of hours they are otherwise normally scheduled to work.
For those employees whose schedule varies weekly, employees are entitled to be paid for the average number of hours that the employee was scheduled each workday (including hours for which the employee took leave of any type) over the 6-month period ending on the date on which the employee takes the leave.
If the employee’s schedule varies and he/she has not worked for at least 6-months, the employee is entitled to be paid for the average number of hours the employee and employer agreed at the time of hire that the employee would work each workday. If there was no such agreement, the employee is entitled to be paid the average number of hours per workday that the employee was scheduled to work (including hours for which the employee took leave of any type) over their entire period of employment.
Are there caps on the amount of pay employees are entitled to receive under the EPSLA and/or EFMLA?
Yes. If an employee takes EPSL for his/her own health (as set forth in paragraphs 1, 2 & 3 above), the employee is entitled to no more than $511 per day, and $5,110 in the aggregate. If an employee takes leave for one of the other reasons (as set forth in paragraphs 4, 5 & 6 above), the employee is entitled to no more than $200 per day, and $2,000 in the aggregate.
If an employee takes EFMLA, the employee’s pay shall not exceed $200 per day and $10,000 in the aggregate (or, if combined with EPSL, $12,000 in the aggregate.)
Are small businesses exempt from having to provide EFMLA and/or EPSL?
Breweries with fewer than 50 employees can elect to be exempt from the EFMLA and “Category 5” of EPSL when the imposition of the leave would “jeopardize the viability of the business as a going concern.”
A brewery may claim an exemption and deny an employee EFMLA and/or Category 5 of EPSL if “an authorized officer” has determined that the employee’s absence would:
1. Result in the brewery’s expenses and financial obligations exceeding available revenue and cause the brewery to cease operating at a minimal capacity; or
2. Pose a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
3. Prevent the brewery from operating at a minimum capacity because there are not sufficient workers who are able, willing and qualified and who will be available at the time and place needed, to perform the labor or services provided by the employee(s) requesting leave.
To make this election, the brewery must document that a determination has been made pursuant to the criteria set forth above. The brewery should retain the records in its files for four years.
Do I have to post anything in my brewery for my employees to see?
Yes, breweries must post and keep posted this notice. The notice must be posted in a conspicuous place on the premises of the brewery where notices are customarily posted. In addition to the physical posting, to the extent breweries have employees currently working off-site, breweries should email a copy of the notice to these individuals.
Please note that although the above Q/A’s address several aspects of the EFMLA and EPSLA, it is not an exhaustive list and, for that reason, breweries are well advised to review the Department of Labor’s FAQs which touch on many common questions employers have. In addition, I am happy to answer any questions you may have about the EFMLA and/or EPSLA or any other COVID-19 employment related issues. You can reach me at bcasaceli@mirickoconnell.com or 508-860-1478. Stay well, everyone.