This past Wednesday night (March 18), President Trump signed the Families First Coronavirus Response Act into law. You’ve been hearing about it since the House passed its version last Saturday. Now, it’s cleared the Senate and the President’s desk. This post covers the high points of the new law, but understand from the start that at this point there are more questions than answers on how exactly it will impact schools and ESUs specifically. Technically the law becomes effective April 1, 2020. The Department of Labor also has until then to issue clarifying guidance. Here’s what we know right now.
The Act creates two new types of employer-paid leave: (1) emergency paid sick leave, and (2) emergency family and medical leave.
EMERGENCY PAID SICK LEAVE
The Act provides for up to two weeks of employer-paid sick leave if an employee is unable to work for any of the following COVID-19-related reasons:
(1) The employee is subject to government-imposed local quarantine or isolation order.
(2) The employee has been advised by a health care provider to self-quarantine.
(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 quarantine or isolation order or who has been advised by a health-care provider to self-quarantine.
(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 certain government officials.
Yes, you read that italicized paragraph correctly. An employee can take employer-paid sick leave to care for their child if the child’s school or daycare is closed due to COVID-19 precautions.
This paid sick leave is available to all employees, “regardless of how long the employee has been employed,” and is “available for immediate use.” Full-time employees are entitled to up to 80 hours of paid sick leave. Part-time employees receive up to the number of average number hours that the employee works during a two-week period of time. So, an employee who normally works 30 hours per week will still only get 2 weeks’ worth of paid leave (so 60 paid hours, not 80).
For Nebraska school employees taking emergency paid sick leave for reasons (1), (2), or (3) above, the employee will be entitled to the greater of either (1) the employee’s regular rate of pay, or (2) the Nebraska minimum wage ($9.00/hr). Notice that this may be higher than the hourly rate you regularly pay your employees since Nebraska school districts are not subject to the Nebraska minimum wage.
For employees taking such leave for reasons (4), (5), or (6) above, the payments are reduced to two-thirds of the greater of (1) the employee’s regular rate of pay, or (2) the Nebraska minimum wage.
The Act also caps the total amount of payment (in dollars) that employees can receive, has guidance on how to determine paid sick leave for employees with varying schedules, and places other specific requirements of employers.
EMERGENCY FAMILY AND MEDICAL LEAVE
Unlike traditional FMLA leave, the emergency FMLA leave created by the Act is employer-paid leave. Employees are entitled to up to 12 weeks of emergency FMLA leave when the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to . . . an emergency with respect to COVID-19 declared by a Federal, State, or local authority.
Again, neither the employee nor the child are required to be infected with or show symptoms of COVID-19.
All public school districts and ESUs are employers under the emergency FMLA. In order to be considered an “eligible employee” for this emergency FMLA leave, employees need only be employed for at least 30 calendar days by the employer from whom the leave is requested.
As we read the new law, every school employee (employed 30 days or more) will be entitled to this leave if they are actually unable to work, even remotely, due to having to care for a son or daughter.
(NOTE: This is in contrast to employee eligibility for “traditional” FMLA which requires, among other requirements, that an employee has been employed for at least 12 months, works at a job site with 50 or more regular employees, and has provided at least 1,250 hours of service during the previous 12-month period.)
The first ten days of emergency FMLA leave are unpaid, and the next ten are paid--at a rate of two-thirds of the employee’s regular rate of pay. However, the two provisions of the new law work together, so the employee may be able to take an initial 2 weeks of leave and be paid for it under the Emergency Sick Leave provisions of the Act and then take Emergency Family and Medical Leave after those first two weeks have expired.
There are a lot of other details in the Act, including caps on total leave payments, how other paid leave can be substituted, how to handle employee with varying schedules, the effect of other provisions of the FMLA, and certain exemptions for certain employees.
Is school closure enough?
The sole fact that the school where the employee works has been closed as a result of COVID-19 is insufficient in and of itself for an employee to qualify for either paid sick leave or emergency FMLA. For example, an otherwise healthy school employee--who does not have young children and who is not caring for anyone else--is not entitled to any of the two new types of leave under this law.
As a result, the two types of leave created by the Act do not fully address many of the challenges that school leaders are facing. A primary concern is how to provide pay and/or leave to valued staff to retain them and keep them available for school purposes.
How do you pay for it?
You’ll find a way! (Not kidding….) Seriously, that’s their plan for public school districts.
Although the Act provides for payroll tax credits in favor of most employers to offset the expenses that the employers incur in providing this paid leave, those payroll tax credits do not apply to political subdivisions of the state (like public schools). That’s right, the federal government just created a new benefit, that is available starting April 2, 2020, and public schools are going to have to pay for it. On these tax issues, we recommend that you work with your auditor and/or school accountant about addressing the expenses you incur in providing this federally-mandated paid leave.
We asked employees to sign return to work agreements, so does this change any of that?
It’s completely up to you and your board. We believe these new laws will supplement, but not necessarily replace, the actions taken by your board and the pay and benefits provided under existing laws during closures. For example, an employee may have burned through his or her FMLA leave already; or “shelter in place” orders may require employees not to come to work (regardless of childcare availability). Plus, several employees simply will not qualify for either of the two new types of leave available under the Act.
Okay, KSB, that’s confusing. Let’s see some examples…
Pam (a para) has been working diligently on any assignments you give her. She’s a team player and has been asking her mom to care for her 3 children every day since March 16. However, on March 31, Pam’s mom is told by her doctor to remain isolated because she is a diabetic with a heart condition. On April 2, Pam sends in a leave request to care for her 3 school-age children. Between closures and lack of providers, there is no other child care available for Pam in your community. Pam is probably eligible for 2 weeks of Emergency Sick Leave (even if she/her child are not sick!) to care for her children, and then likely eligible for Emergency Family Medical Leave to care for her children. She would receive at least two-thirds of her pay during this entire time, for the remainder of her expected duty weeks, up to a total of 12 (the usual FMLA limit).
2. Tom (a teacher) has not had a great attitude through the closure. He’s a PE teacher and doesn’t understand why he has to provide any enrichment activities for students during the closure. You are requiring all staff members to at least make student contact regularly to provide enrichment activities; staff are also working collaboratively (remotely) on curriculum review and planning for future educational services. Tom just doesn’t want to do it. Tom tells you his 3 young boys are “a handful” and therefore, due to the school closure and daycare closure, he can’t complete any of these requirements. Tom asks for both Emergency Sick Leave and Emergency Family Medical Leave. Your choice will be to honor Tom’s request or to deny it, arguing he is not “unable” to work. However, if you deny it, Tom may be able to file a labor complaint or lawsuit on that basis.
3. Jane (your head custodian) is immuno-compromised and says that despite wanting to work, her doctor has ordered her to remain in isolation in her home unless it is medically necessary for her to leave. Jane may qualify for the Emergency Sick Leave based on her medical professional’s directive to self-quarantine. However, that is only 2 weeks’ worth of leave. You will still need some arrangement with Jane for the weeks after.
4. Sally (a long term sub) has started exhibiting symptoms of some sort of upper respiratory virus. Her doctor has told her that she doesn’t qualify under the medical protocols for COVID-19 testing, but that she should self-quarantine as if she had tested positive. As a long-term sub, Sally was not offered a return to work agreement, and she would not normally be entitled to any paid sick leave. Sally qualifies for the Emergency Sick Leave based on her medical professional’s advice. She will also likely qualify for 12 weeks of paid FMLA leave at two-thirds of her long-term sub pay.
If you have any questions about these new categories of employer-paid leave, how to plan for the inevitable requests for this leave that you will receive, and other employment issues arising from school closures and COVID-19, we recommend that you contact your school attorney or call Karen, Steve, Bobby, Coady, or Jordan at KSB School Law.