As Shelter-in-Place Orders are relaxed, employers are able to resume varying degrees of pre‑COVID‑19 operations subject to a myriad of state, county and sometimes city government recommendations and/or requirements. However, covered employers remain subject to the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLA”). Both of these laws, part of the Families First Coronavirus Response Act, went into effect on April 1, 2020, and remain in effect until December 31, 2020. We addressed these laws here, here and here. The 2-week benefit of EPSLA may have been exhausted by many employees by now.[1] But even if EPSLA has not been exhausted, the EFMLA may provide up to 12 weeks of paid leave.
Both EPSLA and EFMLA can be taken when the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19, there is no other suitable person providing care for the child during the period for which s/he is requesting to take leave, and, if the child is 14 years of age or older and the employee is requesting leave to provide care during daylight hours, special circumstances must exist that require the employee to provide care.[2]
For these purposes: the term “child” includes a biological, adopted, or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis, who is under age 18 or is 18 or older and incapable of self-care because of a mental or physical disability; the term “child care provider” is a provider who receives compensation for providing child care services on a regular basis; and the term “place of care” means if the employee uses a family member or friend, such as a neighbor, to regularly care for the child, compensation is not a requirement for them to be considered a child care provider for EFMLA/EPSLA purposes.
Perhaps more importantly today, the term “place of care” means a physical location in which care is provided for the employee’s child while the employee works for the employer. The physical location does not have to be solely dedicated to such care. Examples include daycare facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs and respite care programs. Accordingly, the cancellation of summer camps will mean that the employees on EPSLA and/or EFMLA leave due to school closings will be able to continue that leave if their summer programs are canceled due to COVID‑19. It also means that employees who were not in need of leave previously may have new requests for EPSLA and/or EFMLA should their summer childcare plans fall through.
Practical Takeaways
Employers should re-evaluate the status of employees on EPSLA and EFMLA to ensure that employees have not exceeded the benefits available under those laws and should evaluate whether parents whose summer programming is postponed or canceled for their children are eligible for EPSLA or EMFLA leave. In addition, employers should be sure they have all documentation needed to support available tax credits. Employers also should consider all applicable state, county and/or city requirements or recommendations for return-to-work screening (e.g., temperature checks, symptom questionnaires, etc.)
For more information, please contact:
- Robin Sheridan at (414) 721-0469 or rsheridan@wp.hallrender.com;
- Jake Kolisek at (317) 977-1428 or jkolisek@wp.hallrender.com; or
- Your regular Hall Render attorney.
Hall Render’s attorneys and professionals continue to maintain the most up-to-date information and resources at our COVID-19 Resource page, through our 24/7 COVID‑19 Hotline at (317) 429-3900 or by contacting your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice. Hall Render cannot answer questions about an individual’s eligibility for Unemployment Benefits.
[1] Reminder: EPSLA and EFMLA are in addition to, rather than in lieu of, pre-existing employer leave benefits.
[2] EPSLA is also available for other COVID‑19-related reasons and employees with a diagnosis of COVID-19 may be FMLA eligible with a serious health condition. See our article here for detailed information.
