Congress passed the Families First Coronavirus Act (“Act”) effective April 1, 2020 through December 31, 2020, which requires certain employers, including public school districts, to provide employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. The U.S. Department of Labor’s Wage and Hour Division (“DOL”) issued preliminary guidance on March 24, 2020 concerning the Act, and also created a corresponding poster schools must post to employees. The guidance is provided in three parts: (1) a Fact Sheet for Employees; (2) a Fact Sheet for Employers; and (3) a set of Questions and Answers. Additional guidance is expected, but the preliminary guidance may be found here:

Fact Sheet for Employees: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave

Fact Sheet for Employers: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

Questions and Answers: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Generally, employers covered under the Act must provide employees up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave based on the higher of their regular rate of pay, or the applicable state or federal minimum wage. In addition, for eligible employees unable to work due to a need for leave to care for a child whose school or childcare provider is closed, an additional (10) weeks of partially paid expanded FMLA leave is available. The following generally outlines the duration and amount of pay for these leaves:

For qualify reasons #1-3 below, eligible employees are paid at one hundred percent (100%), up to $511 per day and $5,110 total (over a 2-week period);
For qualify reasons #4 or #6 below, eligible employees are paid at two-thirds (2/3), up to $200 per day and $2,000 total (over a two-week period); and
For qualifying reason #5 below, eligible employees are paid up to 12 weeks, with: (1) the first two weeks being the expanded paid sick leave (if the employee chooses to use the expanded sick leave for this time, versus another available leave or taking it as unpaid leave); and (2) the next 10 weeks being paid family and medical leave. These two leaves (expanded sick and expanded FMLA) that make up the 12 weeks are paid at two-thirds (2/3), for up to $200 per day and $12,000 total (over a 12-week period).

To qualify for the 10 weeks of FMLA leave, employees must have been employed for at least thirty (30) days prior to their leave request (not the standard FMLA eligibility criteria of 1,250 hours in the previous year). However, to qualify for the two weeks of paid sick leave, there is no requirement that the employee has worked for any specific amount of time to be eligible.

An employee is entitled to take leave related to COVID-19, for the duration and amount described above, if the employee is unable to work, including unable to telework, because the employee:

Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
Has been advised by a health care provider to self-quarantine related to COVID-19;
Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
Is caring for an individual subject to an order described in #1 or self-quarantine as described in #2;
Is caring for his or her child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19 related reasons; or
Is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.

Please note, a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work during the two-week period. If the normally scheduled hours are unknown, the employer should use a six-month average to calculate the average daily hours of the employee. If the employee has not been employed for at least six months, the Department of Labor directs employers to use the agreed upon number of hours the employee is expected to work upon his or her hire.

In addition, many school employees have already accrued paid sick leave or other forms of paid time off, in accordance with board policies/applicable collective bargaining agreements. The Act specifies that the expanded paid sick leave, and expanded paid FMLA leave benefits can be used in addition to any other applicable paid leaves provided by the school district. While you cannot require the use or exhaustion of already accrued sick leave/other paid leaves before an employee takes the Act’s expanded paid leave options, employees may opt to use the expanded paid leave first if they choose to do so, and then supplement it with any applicable, previously accrued paid leave to reach their full wage rate.

Under the Act, employers must notify employees of the paid leave. Per the Act’s language, the DOL has provided the model notice for employers to use in notifying their employees of the Act’s eligibility requirements, leave calculations, penalties, and more. The DOL Model Poster for employer notification may be found here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Districts must post this notice “in a conspicuous place on its premises,” such as an employee break room or other common space. However, given school districts are having most staff work remotely, in accordance with Dept. of Labor guidance, districts must post this notice “by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.”

Employers in violation of the first two weeks paid sick time or unlawful termination provisions of the Act will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217. Employers in violation of the provisions providing for up to an additional 10 weeks of paid leave to care for a child whose school or place of care is closed (or child care provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act. The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act. For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.