Coronavirus Resources for Schools

COVID-19 Emergency Paid Sick Leave and FMLA

Contains resources from school districts and public health agencies.

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Unlike regular paid sick leave, however, employees taking Emergency Paid Sick Leave will only receive full pay, not to exceed $511 per day or $5,110 in the aggregate, if they are taking leave for reasons (1) through (3), above. Employees taking Emergency Paid Sick Leave for reasons (4) through (6), above, will only be entitled to receive two-thirds of their regular pay, not to exceed $200 per day or $2,000 in the aggregate. Emergency Family and Medical Leave Expansion Act At present, California public sector employees are eligible to take up to 12 workweeks of unpaid FMLA leave if they have been employed with their current employer for at least one year and worked at least 1,250 hours in the preceding 12 months. Eligible employees may take FMLA leave for the birth of their own child; for the placement of a child with the employee in connection with adoption or foster care; for their own serious health condition; and/or to care for their spouse, child or parent with a serious health condition. The new Emergency FMLA law provides an additional reason for employees to take up to 12 workweeks of FMLA leave: to care for their own minor child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19. Unlike the other types of FMLA leaves, employees taking Emergency FMLA need to be employed by their current employers for at least 30 days. Also unlike the other types of FMLA leaves—which are generally unpaid—employees taking Emergency FMLA leave will be paid two-thirds of their regular pay, not to exceed $200 per day or $10,000 in the aggregate, for up to 10 weeks. Employees will not be paid for first 2 weeks (or 10 days) of Emergency FMLA leave, unless they elect to use their accrued paid time off, such as vacation time, paid sick leave or extended sick leave. Practically speaking, this means that an eligible employee could use up to 80 hours of Emergency Paid Sick Leave (for reason (5), above) for the first 2 weeks, and then receive two-thirds of his or her regular pay for the remaining 10 weeks of Emergency FMLA. Many public employers have asked whether this is in addition to—or a mere expansion of—the existing 12 weeks of FMLA leave. Although neither Congress nor the U.S. Department of Labor ("DOL") has clarified this issue, the text of the Act indicates that employees are entitled to a total of 12 workweeks of Emergency FMLA and regular FMLA leave during a 12-month period. We anticipate that the DOL will release additional information and guidance on or about March 29, 2020, following the conclusion of a public comment period. The application of the new Emergency Paid Sick Leave Act and new Emergency FMLA leave Expansion Act is very fact- specific, so please make sure to contact your legal counsel for assistance during these rapidly changing times. Please do not hesitate to contact one of our six offices if you need assistance navigating or responding to issues related to Emergency Paid Sick Leave or Emergency FMLA leave. F3 NewsFlash ® Written by: Roy Combs, partner; Jordan Bilbeisi, partner; and Vanessa Lee, associate FRESNO | INLAND EMPIRE | LOS ANGELES | OAKLAND | SACRAMENTO | SAN DIEGO This F3 NewsFlash ® is a summary only and not legal advice. We recommend that you consult with legal counsel to determine how this legal development may apply to your specific facts and circumstances. © 2020 Fagen Friedman & Fulfrost LLP All rights reserved, except that the Managing Partner of Fagen Friedman & Fulfrost LLP hereby grants permission to any client of Fagen Friedman & Fulfrost LLP to use, reproduce and distribute this NewsFlash intact and solely for the internal, noncommercial purposes of such client.

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