Sick Leave and FMLA Expansion During Coronavirus

photo of attorney Elizabeth Welch who writes about sick leave and FMLA expansion during coronavirus

Elizabeth Welch


Everyone, both employers and employees are wondering about the new sick leave and FMLA expansion during coronavirus and its implications. Cannalex Law is pleased to welcome back guest blogger Elizabeth Welch. She’s a Grand Rapids attorney that specializes in employment law and is our go-to expert on these matters.

Our cannabis and non-cannabis businesses will be interested in her insights.

Congress has been working this week on a paid leave package for employees. On March 14, the House of Representatives passed HR 6201 – the Families First Coronavirus Response Act.  The Senate passed the Bill on March 18 in the afternoon, and the President signed it into law last night.

The new law provides for free virus testing, expanded food assistance, expanded unemployment assistance to states, additional protections for health care workers, new federal paid sick leave and expanded family medical leave for smaller employers (for child care only), and tax credits for the expanded leave.

The new temporary sick and FMLA coverage available for employees must be implemented by employers on or before April 2, 2020 and sunsets on December 31, 2020.

The Treasury Department will draft regulations to create payroll tax credits to offset costs for compliance. Costs are supposed to be offset completely via the credits.

Here are some important details you need to know about sick leave and FMLA expansion during coronavirus.

Emergency Paid Sick Leave

Emergency Paid Sick Leave must now be paid to any employee per below.

Covered Employers: All employers with fewer than 500 employees.

Leave Reasons: Any employee who cannot work (or telework) because an employee:

(1)       is under quarantine or isolation order due to COVID-19;

(2)       has been advised by a health care provider to self-quarantine due to COVID-19;

(3)       is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

(4)       is caring for an individual who is subject to (1) or (2):

(5)       is caring for a son or daughter if school/childcare provider is closed or unavailable due to COVID-19 precautions;

(6)       is experiencing a substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of Treasury and Labor.

Leave Time Allowed: 80 hours of paid sick leave.

Pay Rate for Sick Leave: The employee’s regular hourly rate (or salary if applicable) for reasons (1)-(3) above and capped at $511/day ($5110 total).  2/3 of the employee’s regular hourly rate for reasons (4)-(6) above and capped at $200/day ($2000 total). Part-time is pro-rated to the average of what the employee works in a 2-week period.  There is no carryover of sick leave if the leave is unused.

Use with Other Paid Time: Employers cannot require other paid time provided to employees be used first. Note: Employers in Michigan with 50 or more employees must already provide up to 40 hours of paid sick leave. This new leave is in addition to that leave.

Employee Eligibility for Sick Leave: No restrictions. This new paid sick time is open to all employees.

Exception: The law states that regulations can be drafted to exclude businesses with less than 50 employees if these requirements would jeopardize the business (but those do not exist to date). Health care providers and emergency responder employers also may elect to exclude employees from this new law.

Notice: Employers will have to post a model notice, to be created within 7 days of the law’s passage, by the Secretary of Labor

Emergency Paid Family Medical Leave Act

 The Family Medical Leave Act (FMLA) covers employers with 50 or more employees. The FMLA provides unpaid leave up to 12 weeks for certain reasons to employees who have worked 1250 hours in 12 months for an employer. The FMLA guarantees that a position is held for the employee and that the employee continues receiving health insurance benefits.  Any employee (or covered family member) who meets the definition of having a “serious health condition” due to COVID-19 under the FMLA is already covered by the law.

 Congress has expanded the FMLA to cover more employers for the very limited purpose of employees missing work due to lack of child care during the pandemic. Details of the new paid Emergency FMLA are below.

 Covered Employers: All employers with fewer than 500 employees.

 Leave Reason: The emergency legislation has expanded FMLA coverage to employees who are unable to work (or “telework”) due to having to care for a son or daughter if the school or care provider is closed or unavailable due to the public health emergency. “Child care provider” is defined as a “provider who receives compensation for providing child care services on a regular basis.”

 Leave Time Allowed: 12 weeks.

 Pay Rate for Emergency FMLA: The first 2 weeks can be unpaid (employee can use–but not be required to use–existing vacation, sick, or PTO time). The remaining time is paid at a minimum of 2/3 of the employee’s pay rate for what would have been regularly scheduled hours. Capped at $200/day (up to $10,000).  

 Use with other Paid Time: Employee has the option of using accrued sick/personal/vacation time or PTO during the first 2 unpaid weeks. They cannot be forced to use the time.

 Employee Eligibility for Emergency FMLA: Any employee who has worked for the employer for at least 30 calendar days.

 Restoration Rights to Prior Job: The same rules apply as those that exist under the FMLA (employees are entitled to full job restoration upon return from FMLA). Employers with fewer than 25 employees are excused from this requirement if the job no longer exists “due to economic conditions or other changes in operating conditions of the employer” due to the public health crisis during the leave and the employer is unable to place the employee in an equivalent position. The employer must then attempt to place the employee in an equivalent position within one year if one becomes available. 

 Exception: The law states that an employer of a health care provider or emergency responder can exempt employees from the new law. Additionally, the Secretary of Labor is authorized to draft regulations that exempt small businesses with less than 50 employees if these requirements would “jeopardize the viability of the business” (but those do not exist to date).

Employees who have been laid off due to economic conditions or mandatory closures are not likely covered by these new laws. Employers can choose to offer more generous benefits than otherwise required. Laid-off employees are eligible for unemployment benefits (expanded this week by Governor Whitmer). I realize many employers are trying to figure out how to help employees while simultaneously working to ensure their business’s viability. It’s incredibly difficult right now.

If you need more information about sick leave and FMLA expansion during coronavirus, please don’t hesitate to contact me: