March 19, 2020
On Wednesday, March 18, 2020, the Families First Coronavirus Response Act was passed by the Senate and signed by President Trump. The Act is now official and takes effect on April 1, 2020. The Education Team at Nelson Mullins has been carefully following these developments and is standing by to assist school districts as they adapt to the changing landscape brought about by COVID-19.
Below is an overview of the Act’s most critical employment requirements for public K-12 school districts. All provisions are specifically limited to the COVID-19 health crisis and expire by December 31, 2020. Of course, in addition to these new requirements, school districts continue to be bound by all other provisions of the FMLA, ADA, Title VII, FLSA, as well as state law.
Emergency Family and Medical Leave Expansion Act
The Act provides 12 weeks of job-protected leave under a new “public health emergency” section of the Family and Medical Leave Act (FMLA). This leave is available if the employee is unable to work (or telework) due to a need to care for the employee’s minor son or daughter if the school or place of care has been closed, or the employee’s child care provider is unavailable, due to a public health emergency associated with COVID-19.
In order to be eligible, an employee need only to have been on the school district’s payroll for 30 days (as opposed to the FMLA’s usual 12 month/1,250 hour requirement).
The employee may use the Act’s new paid sick leave provisions (described below) or he/she may choose to substitute any other accrued leave during the first 10 days. After the first 10 days of leave, if the employee still requires the COVID-19 public health emergency leave, school districts must continue paid FMLA leave at a rate of no less than two-thirds of the employee’s usual rate of pay, subject to a cap of $200 per day and $10,000 total.
As with traditional FMLA leave, this leave is job-protected, meaning the school district must return the employee to the same or equivalent position upon their return to work.
The Act does not exclude employees from being able to stack this COVID-19 public health emergency leave with traditional FMLA leave if they would otherwise qualify for traditional FMLA leave. Thus, it is possible that some employees could take protected leave for up to 24 weeks in the year.
Emergency Paid Sick Leave Act
The Act requires school districts to provide employees with up to 80 hours of paid sick leave if the employee is unable to work (or telework) due to a need for leave because of any of the following reasons:
Full-time employees are entitled to 80 hours of leave, and part-time employees are entitled to the typical number of hours that they work in a typical two-week period. The leave is paid at the employee’s full regular rate if the employee is taking leave for him/herself under paragraphs (1)-(3), subject to a maximum cap of $511 per day and $5,110 total. The leave is paid at two-thirds the employee’s regular rate if the employee is taking leave to care for others under paragraphs (4)-(6), subject to a maximum cap of $200 per day and $2,000 total.
The paid sick leave is available to all employees of a school district (who have a qualifying need relating to COVID-19) regardless of how long the employee has worked for the district. (To be clear—the 30-day employment requirement in the FMLA amendments above do not apply to these paid sick leave provisions.)
The paid sick leave hours provided under this Act do not have to be paid out upon an employee’s separation from employment and do not carry over from year to year.
The Act prohibits employers from requiring an employee to find a replacement to cover their hours while they will be taking this COVID-19 paid sick time. Additionally, the Act prohibits employers from requiring an employee to use other pre-accrued leave before the employee uses the COVID-19 paid sick leave.
The Act requires that notice of these provisions be posted by April 1 where the District customarily posts employee-related legal notices. The Secretary of Labor will distribute model notices within the next 7 days. The Act also includes anti-retaliation protections, and generally provides for remedies in line with Fair Labor Standards Act penalties for failure to pay minimum wages.
Relief To Employers for the Added Expense of the Above COVID-19 FMLA and Paid Sick Leave Requirements
The Act provides exceptions to some of the above requirements for small private employers. The Act also provides tax credits to private employers to help offset the added expense of the above requirements. None of this relief is provided to government employers such as school districts.
If you have any questions or would like assistance in navigating your district’s response to COVID-19, please contact Sherry Culves, or any of the members of Nelson Mullins' Education Team.
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.