SAMPLE: Emergency Paid Sick Leave and FMLA-Public Health Emergency Leave

We appreciate and recognize all that our team of employees has done to continue to serve our clients during this ongoing public crisis. The COVID-19 (Coronavirus) pandemic has presented all of us with unprecedented challenges in both our business and personal lives. Effective April 1, 2020, in order to assist employees in meeting some of these challenges, the following leave policies will take effect in accordance with the Families First Coronavirus Response Act (FFCRA). These policies are temporary and will expire on December 31, 2020, or as otherwise dictated by law.

Emergency Paid Sick Leave
The FFCRA created a new form of paid sick leave called Emergency Paid Sick Leave (EPSL) for certain leave events related to COVID-19.

Eligible Employees. Full-time and part-time employees are eligible to use EPSL immediately upon hire.

Reasons for Using Leave. EPSL may be used if employees are unable to work or telework for the following reasons:

1. They are subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. They have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. They are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. They are caring for an individual who is subject to an order described in (1) above or has been advised as described in (2) above;
5. They are caring for their son or daughter (as defined in the FMLA) whose school or place of care is closed or the child care provider is unavailable due to COVID-19 precautions; or
6. They are experiencing substantially similar conditions as specified by the designated Federal agencies.

See Workplace Closures, Furloughs, Schedule Reductions below for further information.

Amount and Usage of Leave. Full-time employees (those scheduled to work at least 40 hours per week) are eligible for eighty (80) hours of EPSL. Part-time employees are eligible for EPSL based on the number of hours the employee is normally scheduled to work in a two-week period. A weighted six-month average will be used if a part-time employee does not work a set schedule.

EPSL may be used only on a continuous basis, not intermittently or on a reduced-schedule basis. Once an employee returns to work, if he/she has not exhausted the EPSL entitlement, the balance can be used at a later time for another qualifying reason. [OPTIONAL: Employers can elect to allow intermittent/reduced schedule usage and may set the increment, except EPSL may not be used intermittently for Reasons 1-4. Employers also can elect to allow a combination of telework and intermittent usage.]

Other Paid Leave Policies. The firm already provides paid time off (PTO). EPSL is in addition to PTO, and employees may opt to use EPSL and PTO in the sequence of their choice. It is the employee’s responsibility to inform the Firm Administrator of the form of leave being requested.

Pay Rate. EPSL will be paid based on the employee’s regular rate of pay, as determined under the Fair Labor Standards Act (FLSA), taking an average over a six-month period. For leave under paragraphs 1, 2, or 3 above, this rate will be the employee’s full regular rate, capped at $511 per day ($5,110 in the aggregate). For leave under paragraphs 4, 5, or 6, this rate will be two-thirds (2/3) of the employee’s regular rate, capped at $200/day ($2,000 in the aggregate).

[OPTIONAL: Note – Employer will not receive tax credit for this supplement.
Supplementing Pay Rate. Although the FFCRA provides caps for pay rates, the Company has opted to continue the employee’s full regular rate of pay for each day of EPSL.]

[ANOTHER OPTION: Note – Employer will not receive tax credit for this supplement.
Supplementing Pay Rate. An employee may elect to supplement the capped or two-thirds pay rate by using accrued and available paid time off concurrently with EPSL. For example, an employee may opt to use one-third (1/3) of a vacation day to increase the pay rate to the employee’s full regular rate.
]

Termination of Leave. EPSL shall cease beginning with the employee’s next scheduled work shift immediately following the termination of the need for EPSL as described above or when the employee has exhausted the EPSL entitlement, whichever is sooner. EPSL will not carryover from one year to the next or be paid out upon separation for any reason. See Return to Work below.

Notice and Documentation Requirements. See below.

Family and Medical Leave – Public Health Emergency
The FFCRA also provides eligible employees with up to 12 weeks of emergency family and medical leave for a qualifying need related to a public health emergency.

Eligible Employees. An employee who has been employed for at least thirty (30) calendar days may qualify for FMLA-Public Health Emergency Leave. Employees who were laid off after March 1, 2020 and rehired will also qualify, provided that they worked at least 30 calendar days of the 60 calendar days prior to layoff.

Reasons for Using Leave. FMLA-Public Health Emergency Leave can be used when an employee is unable to work, including telework, due to caring for the employee’s son or daughter under age 18 (as defined in the FMLA), if the son or daughter’s school or place of child care has been closed, or the child care provider is unavailable. This must be the result of a COVID-19 related emergency declared by a Federal, State, or local authority. In addition, the employee must certify that no other suitable person is available to care for the child during the period of requested leave, and, in the case of a child ages 15-17, that care during daylight hours is needed due to special circumstances identified by the employee requiring care. See Workplace Closures, Furloughs, Schedule Reductions below for further information.

Amount and Usage of Leave. All employees will be entitled to twelve (12) workweeks of leave, including the initial two weeks of EPSL or other paid leave. The remaining ten (10) weeks will be paid as set forth below in the “Pay Rate” portion of this policy.

FMLA-Public Health Emergency Leave may be used only on a continuous basis, not intermittently or on a reduced schedule basis. Once an employee returns to work, if he/she has not exhausted the full entitlement, the balance can be used at a later time for another qualifying reason. [OPTIONAL: Employers can elect to allow intermittent/reduced schedule usage and may set the increment. Employers also can elect to allow a combination of telework and intermittent usage.]

Other Paid Leave Policies. The first ten (10) days of FMLA-Public Health Emergency Leave will be unpaid unless the employee has PTO available and elects to use that paid leave. Or, the employee may use EPSL for the first ten (10) days, if eligible. The balance of the FMLA-Public Health Emergency Leave will be paid at the Pay Rate below, unless the employee has available accrued paid time off and elects to use it concurrently in which case the Pay Rate will be the employee’s normal full rate under the paid leave policy. [OPTIONAL: Employers can require the use of paid leave concurrently, if preferred.]

Pay Rate. For eligible employees taking FMLA-Public Health Emergency Leave, the pay rate will be two-thirds (2/3) of the employee’s regular rate of pay, as determined under the FLSA, for the number of hours that the employee would normally be scheduled to work, capped at $200/day and $10,000 in the aggregate for the entire FMLA-Public Health Emergency Leave period. For non-exempt employees, the regular rate of pay is based on the weighted average rate over a six-month period. For exempt employees, it is their regular weekly salary. For individuals who do not keep regular working hours each week, a six-month average will be used. No premium for hours over forty (40) will be included.

[OPTIONAL: Employer will not receive the tax credit for supplement.] Supplementing Pay Rate. Although the FFCRA provides for caps on pay rates, the Company has opted to continue the employee’s full regular rate of pay for each day of FMLA-Public Health Emergency Leave.

Termination of Leave. Paid FMLA-Public Health Emergency Leave will continue until the employee has exhausted his/her twelve (12) workweek entitlement or the reason for using leave ends. See Return to Work below.

Notice and Documentation Requirements. See below.

Workplace Closures, Furloughs, and Schedule Reductions
Workplace closures, furloughs, and schedule reductions, including due to public orders to cease operating, do not qualify as reasons for using EPSL or FMLA-Public Health Emergency Leave, even if they are related to COVID-19. In such event, either before or after April 1, 2020, leave under this policy is not available to cover the missed work hours. For employees already on leave, the leave benefits will cease as of the date of closure or furlough (employees on reduced schedule may still qualify for FFCRA leave if there is a qualifying reason). Employees affected by closures, furloughs, or reduced scheduled may be eligible for Unemployment Insurance benefits.

Notice and Documentation Requirements
Employees should provide notice of the need for leave, either orally or in writing, as soon as possible and in accordance with the usual and customary notification processes. Notice may be given by way of e-mail or a telephone call to the Firm Administrator. Notice must include: the employee’s name; qualifying reason for leave; statement that the employee is unable to work, including telework, for that reason; and the date(s) for which leave is requested.

Generally, the firm will require certification to verify the qualifying reason for the leave. Employees should be prepared to provide documentation such as a copy of any quarantine or isolation order, written note by a health care provider advising to self-quarantine, or notice of closure of school or childcare provider (i.e., email, notification on website or news article). Employees should be prepared to provide additional information in support of various reasons for leave under FFCRA, such as the relationship of individual cared for, a statement of circumstances that exists requiring care for a child over the age of 14, and affirming that there is no other suitable person who can care for the child during the requested leave.

Return to Work
Generally, employees returning to work after using EPSL or FMLA-Public Health Emergency Leave will be restored to the same or an equivalent position, unless in the interim they would have been subject to an employment action, such as layoff and/or worksite closure regardless of leave usage. However, the law provides an exception for employers with fewer than 25 employees. In such circumstances, if an employee takes FMLA-Public Health Emergency Leave, the employer does not need to return the employee to their position if:

• The position does not exist due to changes in the employer’s economic or operating condition that affect employment and were caused by the coronavirus emergency;
• The employer makes “reasonable efforts” to restore the employee to an equivalent position; and
• If these efforts fail, the employer makes an additional reasonable effort to contact the employee if an equivalent position becomes available. The “contact period” is the one-year window beginning on the earlier of:

o The date on which the employee no longer needs to take leave to care for the child; or
o 12 weeks after the employee’s leave commences.

Retaliation
The firm will not retaliate against employees who request or take leave in accordance with this policy.

Questions
Should an employee have any questions related to this policy or the benefits provided hereunder, he or she should contact the Firm Administrator.

Melissa R. Lock is an Of Counsel in our Pennsylvania office.