With the spread of COVID-19 in 2020, more of your employees may need sick leave and family leave to quarantine and care for themselves and their loved ones. Two federal laws can help you decide how to respond to these situations.
The Family Medical Leave Act (FMLA) is a continuing law that requires employers with more than 50 employees to provide employees unpaid, job-protected leave for specific family and medical reasons.
The 2020 Families First Coronavirus Response Act (FFCRA) is a temporary law that requires employers with fewer than 500 employees to give paid sick leave and family medical leave to employees for specific COVID-19 reasons. It’s in effect for leaves and payments from April 1, 2020 through December 31, 2020.
How Do These Laws Affect My Business and Employees During COVID-19?
The FFCRA includes two kinds of COVID-19-related leaves: sick leave for employees, and family medical leave for family situations. COVID-19 leave rules are for paid leave for specific amounts of time. There are different payment amounts, lengths of time, and qualifications for each of these two types of leave.
For family and medical leaves, FFCRA is an expansion of FMLA rules. It adds paid leave to the unpaid family medical leave that some employees may be entitled to. You must qualify employees for COVID-19-related family and medical leave and continue to give the employee unpaid FMLA leave and job protection if they can’t return to work after the COVID-19 paid leave ends, up to the maximum FMLA time. (See below for details on the FMLA rules.)
For employees taking paid sick leave under FFCRA rules, this doesn’t affect FMLA rules, because the FMLA doesn’t cover sick leave. An employee may be entitled to sick leave or sick pay under state or local law, a union contract, or your own company policy.
The FFCRA also included a tax credit to help employers cover some of the cost of giving these leaves, from April 1, 2020 through Dec. 31, 2020. This has been extended through September 30, 2021 by the American Rescue Plan Act of 2021.
Here’s an overview:
|Laws||Family Medical Leave||Employee Sick Leave||Law in Effect|
|FFCRA||Paid for COVID-related reasons only||Paid for COVID-related reasons only||4/1/20 to 12/31/20|
|FMLA||Unpaid for all reasons including COVID||Not included||Continuing|
Does the FMLA Apply to My Business and Employees?
To take an FMLA leave means an eligible employee is taking an unpaid leave of absence from your business with job protection. The employee can get 12 workweeks of leave in a 12-month period (including nonconsecutive time off) for several reasons relating to childbirth, adoption, care for a family member, military duty, or the employee’s serious illness.
To see whether the FMLA rules apply to your business, first look at how many employees you have. If your business has 50 or more employees for at least 20 workweeks this year or last year, you must give eligible employees FMLA leave.
You don’t have to pay employees while they are on (non-coronavirus-related) FMLA leave, and you must protect their job as long as they continue to qualify for the FMLA leave.
If the FMLA applies to your business, then check for individual employee eligibility:
- Working for your company at least 12 months (doesn’t have to be continuous)
- Working at least 1,250 hours during the 12 months immediately before the leave begins
- Working at a location within 75 miles at which that employer employs at least 50 people
What’s the Difference Between FMLA Leave and Sick Leave?
There is no federal law requiring employers to give employees paid sick leave (except for the coronavirus exception above). Each employer treats sick leave differently, deciding whether they want to pay employees for this time off work.
If you give employees paid sick leave, they have a right to take that paid leave when they are taking unpaid FMLA leave, and you may require them to use the paid leave.
How Do I Verify an Employee’s Request for FMLA Leave?
You have the right to require that a serious health condition be supported by a doctor’s certification. For family members, you may also require documentation of the family relationship.
What Must Employees and Employers Do During the Leave?
Employers must continue group health insurance coverage during the leave, and employees on leave must continue to pay their share of premiums.
How Does the Job-Protection Requirement Work?
When an employee returns from FMLA leave, they must be restored to the same job they held when the leave began or to an “equivalent job” (one that’s virtually identical to the original job). Any benefits due to the employee during leave must be resumed at the same level. But an employee isn’t protected from actions that would have happened if they weren't on leave, like a layoff or decrease in overtime.
What if an Employee Doesn’t Return to Work?
At the end of an employee’s FMLA leave, you must get a medical certification of the reason for the leave, to see whether they can return. If the employee chooses not to return to work, and they can’t prove that the circumstances were beyond their control, they can be considered to have resigned.
Because the FMLA is complicated, with many qualifications and restrictions, and the law may change, see this Employer’s Guide to the Family and Medical Leave Act for more details, and check with an FMLA attorney for specific guidance.
- If an employee asks for COVID-19 sick leave, follow the requirements of the FFCRA for determining qualifications, amount, and time of the paid leave.
- If the leave is for COVID-19 family medical issues, first qualify the employee under FMLA rules, then follow the FFCRA rules for the paid leave and the FMLA for the rest of the leave and for other rules.