New Laws to Address COVID-19: PART III of IV
Public Health Emergency Leave Under the Families First Coronavirus Response Act (FFCRA)
adopted by Congress on March 18, 2020. By Beth Sufian, JD
Nothing in this article is meant to be legal advice but is only meant as information.
On March 18, 2020, Congress adopted the Families First Coronavirus Response Act to help individuals who may need leave from work because of the pandemic. This act does many things, and the two that most directly affect working people with cystic fibrosis are the creation of two new forms of employment leave—the Public Health Emergency Leave (“PHEL”) and the Emergency Paid Sick Leave (“EPSL”).
A. PHEL is in Addition to Existing Family Medical Leave Act (“FMLA”) rights.
PHEL is an amendment to the existing FMLA, but PHEL does not replace FMLA leave. PHEL is a new additional qualifying reason for leave. PHEL has standards for determining who is a covered employee and who qualifies to take leave that is different from FMLA.
B. Covered Employers Under PHEL.
All employers with 500 or fewer employees must offer PHEL to eligible employees who have a qualified reason for PHEL. However, there are exceptions for small employers, healthcare providers, and first responder agencies. An employer of a health care provider or emergency responder may elect to exclude such an employee from eligibility for PHEL. Also, employers with fewer than 50 employees may also elect to exclude workers from eligibility for PHEL if the employer determines that granting PHEL leave to the employee would jeopardize the viability of the business as a going concern.
Notice that the criteria for a covered employer under PHEL is much different than the criteria for a covered employer under FMLA. Under FMLA, the employer must have 50 or more employees to be a covered employer. However, the employers covered by the FMLA and PHEL have substantial overlap.
C. Employees Eligible for PHEL.
To be eligible to request PHEL leave, the employee must have worked for the employer for at least 30 days. Considering that the leave is mostly paid leave, it is important to confer with the employer and come to a mutual understanding of both the expected amount of notice and whether the leave will be characterized as PHEL, in addition to the details of pay during the leave period.
The employee eligibility requirements for PHEL are different than for FMLA leave. For PHEL, the employee need only have worked for the employer for 30 days. FMLA leave requires an employee to have worked for the employer for the past 12 months and have worked 1,250 hours in the 12 months preceding the request for leave.
D. Qualifying Reasons for PHEL Leave.
An employee must have a qualifying reason to take PHEL. To qualify, the employee must be unable to work (including inability to tele-work) due to the need to care for a minor child because the child’s school is closed, or a childcare worker is unavailable because of the public health emergency related to COVID-19. A “public health emergency” means an emergency with respect to COVID-19 declared by a federal, state, or local authority.
PHEL is not available for the employee to care for himself or herself. The only qualifying reason for PHEL is the need to care for a minor child and only when the minor child cannot attend school or daycare because of a declared emergency related to COVID-19.
A school or place of care is “closed” for purposes of PHEL even when instruction is being offered or provided online.
The qualifying reason for PHEL is much narrower than the qualifying reasons under FMLA. Under FMLA, an eligible employee who works for a covered employer can take leave to care for himself or herself, a child, a spouse, or a parent. Under FMLA, the condition that requires care is any serious medical condition, including cystic fibrosis. Individuals with CF who are not eligible for PHEL may nevertheless obtain FMLA leave if they work for a covered employer and meet the edibility criteria.
E. 12 Weeks or Less of PHEL.
The maximum amount of PHEL is 12 weeks. However, it appears that PHEL could end earlier, such as when the qualifying reason for PHEL ends (e.g., no longer caring for minor child whose school is closed). PHEL is available from April 1, 2020, through December 31, 2020.
Time on PHEL leave is included in, and not in addition to, the total Family and Medical Leave entitlement of 12 weeks in a 12-month period. However, both PHEL and FMLA may be taken intermittently. Taking one type of leave does not preclude the other, as long as the total amount received does not exceed 12 weeks in a 12-month period.
F. Documentation Supporting the Leave Request.
When requesting PHEL, the employer may request specific information about the employee’s need for leave. The employer may accept oral representations or may require the information in writing.
The U.S. Department of Labor says that the employer may require the employee to provide:
1. The employee’s name (or employee number, etc.);
2. The beginning date and planned ending date of the requested leave;
3. The reason leave is requested and a statement that a person is unable to work because of that reason.
4. Information about the child in need of care:
a. The name of the child;
b. The name of the child’s school, place of care, or childcare provider that has closed or become unavailable; and
c. A statement that no other suitable person is available to care for the child.
In addition, the employer may ask for information necessary for it to claim the tax credit for the paid leave.
Note that the previously existing requirements for FMLA remain in effect. So, if after the PHEL leave begins the employee needs to care for a serous heath condition of their own or of a family member, the employee will need to provide the usual medical certifications under FMLA if required by the employer.
G. PHEL is Mostly Paid Leave.
The employer is not obligated to pay an employee during the first two weeks of PHEL (usually 10 working days). However, the employee may use other accrued paid leave during the first 10 days of PHEL, if any is available.
For the remaining period of PHEL, the employer is obligated to pay the employee not less than two-thirds of the employee’s regular pay, up to $200 per day and not more than $10,000 over the 10-week PHEL leave paid period.
Notice that PHEL is mostly paid. FMLA is unpaid, unless the employer requires the employee to take accrued paid time off simultaneously with FMLA. In a few states there are state laws that mandate FMLA be paid leave.
H. Job Protection Under PHEL.
During PHEL, the worker retains status as a current employee and remains enrolled in and receives benefits of all employee welfare plans in which the employee is enrolled. When PHEL ends, the employee is entitled to return to active employment in the same or substantially similar position held when leave began. These are the same job protections for a worker taking FMLA leave.
Beth Sufian has practiced law for 30 years. Beth is 54 and has cystic fibrosis. Beth is the current President of CF Roundtable. You may contact her with your legal questions about CF-related issues at CFLegal@sufianpassamano.com.