On Friday, EdCounsel attorneys worked with MOASBO to answer questions for school administrators about school closures and changing laws in the midst of the COVID-19 pandemic. We received dozens of great questions in real time that we were simply unable to keep up with, and we are providing this updated blog post in an attempt to cover some of the questions surrounding the Families First Coronavirus Response Act. Please bear in mind that the actual text of the FFCRA is relatively lean, and there are many gaps left that will be filled with guiding regulations by the Department of Labor before the April 2, 2020 effective date. Until then, we have to work with what we’ve been given and will update this guidance when we see more out of the DOL. (Note: the FFCRA does not include any language indicating that the law should be applied retroactively. As a result, employees will be eligible to take this leave on or after April 2, 2020.)
First, it will be helpful to see the relevant provisions of the law laid out for everyone. As we discussed during the webinar, there are two new types of leave that have been created. The leaves are applicable to Missouri public school districts, regardless of the number of employees you have.
How Does the New “Emergency Paid Sick Leave” Work?
If an employee is unable to work due to the following reasons:
- The employee is subject to government-imposed local quarantine or isolation order.
- The employee has been advised by a health care provider to self-quarantine.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to a quarantine or isolation order or who has been advised by a health-care provider to self-quarantine.
- The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
- The employee is experiencing any other substantially similar condition specified by certain government officials.
Note first the italicized portion, under #1, which does not have a clear definition at this time. (What is a “government imposed local quarantine or isolation order? Does it look like what has recently been ordered in Kansas City? Or is it something more stringent than that? At this time, that is not clear. For public schools, however, the Kansas City order set to go into effect on Tuesday, March 24, has specified educational institutions, including public K-12 schools, as “essential businesses” which may continue to operate with staff members maintaining appropriate 6-foot social distancing, therefore, it is unlikely that the italicized portion would apply to schools and school employees when schools are deemed “essential businesses” by a government order.)
Note also the underlined portion, which specifies that employees may take emergency paid leave if the school or place of care of their underage child has been closed due to COVID-19 precautions.
Who can use this leave and how does it work?
Any employee who has worked for the district for any amount of time may use this leave. The leave is paid leave, but the rate of day depends on the reason for the leave:
For reasons 1, 2, and 3: Full-time employees may receive 80 hours of leave, and part-time employees may receive up to the number of average hours the employee works during a 2-week period of time, as opposed to the full 80 hours. The rate of pay that applies to this period of leave will be the employee’s regular rate of pay OR the Missouri minimum wage, whichever is the higher amount. The maximum amount of pay for an employee taking this leave is $511 per day and $5,110 in the aggregate.
For reasons 4, 5, and 6: The rate of pay that applies to this period of leave will be 2/3 the employee’s regular rate of pay OR the Missouri minimum wage, whichever is the higher amount. The maximum amount of pay for an employee taking this leave is $200 per day and $2,000 in the aggregate.
How Does the New Provision of FMLA Work?
It is important to remember that while this new law has been “tacked on” to the FMLA, it does not work like the FMLA we all know and… love?
If an employee is unable to work or telework due to a need for leave to care for a child under the age of 18 if the child’s school or place of care has been closed if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. (Governor Parson declared a state of emergency on March 13, 2020.)
Who can use this leave and how does it work?
The employee must have been employed for “at least 30 calendar days” to be eligible for this leave. (At the time of the webinar there was some confusion on our part about this provision, specifically with regard to questions about subs, so please note the requirement of “at least 30 calendar days” as the trigger for eligibility!) This includes part-time employees. The employee must actually be unable to work or telework.
The first ten days of leave are either unpaid or an employee can use available leave. (Note that the employee could likely use the Emergency Paid Sick Leave described above for those first ten days!) After the first ten days, the employee can take an additional 10 weeks (12 weeks total) of this leave.
Unlike other kinds of FMLA leave, this leave is paid leave, at a rate not less than 2/3 of the employee’s regular rate of pay for the number of hours the employee would be otherwise normally scheduled to work, but not more than $200 per day and $10,000 in the aggregate. Further, employees who take this leave are subject to restoration to their position subject to specific timelines and some narrow exceptions.
Both of these types of leave sunset on December 31, 2020. The Act provides for payroll tax credits in favor of employers to offset the expenses that the employers incur in providing this paid leave, subject to limitations. How this interacts with other portions of the FMLA will need to be examined on an individual basis.
As mentioned in the intro to this post, we had tons of questions from the MOASBO webinar about specific situations, and in attempt to clarify some of those here are a few scenarios!
- Your teachers are expected to complete work packets and record online lessons while your district is closed to students. One teacher, whose wife has been a stay-at-home parent for three years, informs you that he needs Emergency Sick Leave and Emergency Family Medical Leave because cannot perform this work from home given that school is closed and he must care for his two elementary-aged children. This teacher will likely qualify for the two weeks of emergency paid sick leave and also an additional 10 weeks of paid leave under the new provision of FMLA. If the District chose to deny this leave, the District may be the target of a lawsuit for denial and would need to make the argument that the teacher is able to work from home based on the facts known to the District.
- You are having your food service employees come to school and prepare meals to be delivered to students daily. One of your employees is 32 weeks pregnant and feels that she should stay home in order to protect herself and her unborn child from exposure. She does not have a doctor’s order to that effect but says she has an appointment next week and will get one. She is not entitled to any of the leave that we have described above and would be required to use available paid leave in order to take this time off until she is under a doctor’s orders to self-quarantine, at which time, she would be eligible for the two weeks of Emergency Sick Leave, but after those two weeks, if she still has not given birth, the District will need to determine how to handle the remainder of her pregnancy before birth and bonding leave would kick in under the usual provisions of the FMLA.
- You hired a full-time substitute teacher on March 10 for a teacher who went on maternity leave. The substitute contacts you because her father tested positive for COVID-19 and she has been advised by a health care provider to self-quarantine due to her recent contact with her father. She requests Emergency Sick Leave for her quarantine time and Emergency Family Medical Leave to care for her father thereafter. The substitute teacher is eligible for Emergency Sick Leave, but she is not eligible for Emergency Family Medical Leave because she is not an eligible employee under any provision of the FMLA. (Note: This would NOT apply to substitutes who are hired through an outside agency like Kelly Services, because those individuals are not employees of the District.)
We are aware that every district is handling staff employment a little differently at this time in order to best serve your students and your communities. We also understand that the plans in place are changing rapidly based on conditions related to the spread of COVID-19 and guidance from local and state officials. We hope this post has answered some of your questions, but as with all employment-related issues, each circumstance is unique. We are here to answer your specific questions at any time. Below you will find our email addresses, our cell phone numbers, and you can always contact us at any of our office locations. Please don’t hesitate to reach out.