Maria Dwyer of Clark Hill. Maria Dwyer of Clark Hill.

As the coronavirus (COVID-19) spreads throughout the United States, the impact on student instruction, including big budget unknowns for public and private educational institutions, is daunting. Adding to this concern is the Families First Coronavirus Response Act (H.R. 6201) (the act) that was passed by the Senate and signed by the president on Wednesday, March 18, expands the protections under the Family Medical Leave Act (FMLA) and requires many private and all public educational institutions to provide significant amounts of paid leave related to COVID-19.

Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act expands FMLA coverage for employees unable to work (or telework) due to the need to care for an employee's child who is under 18, because the child's school or daycare is closed or the childcare provider is unavailable due to COVID-19 related restrictions and closures. For private educational institutions, the EFMLEA exempts private institutions with over 500 employees and may exempt smaller institutions of fewer than 50 employees where it would "jeopardize the viability of the business as a going concern." Public educational institutions should be prepared to follow the requirements of the EFMLEA regardless of size. Employees need only be employed for 30 calendar days to be considered covered by the act.

The leave also provides the employee with continued health benefits and full restoration rights at the conclusion of the leave.

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act creates a new paid sick leave entitlement for workers affected by COVID-19 wherein the employee is subject to a legal quarantine or isolation order; the employee has been advised by a health care provider to self-quarantine; the employee is symptomatic and seeking a diagnosis; the employee is caring for a person described in reason 1 or 2; the employee is caring for a son or daughter whose school or day care is closed, or the child-care provider is unavailable due to COVID-19 precautions; or the employee is experiencing any other substantially similar condition specified by the Secretary of  Health and Human Services (HHS). Private educational institutions with less than 500 employees and all public-sector educational institutions are covered. There is no minimum length of employment for eligibility.

Eligible full-time employees may be eligible for up to 80 hours of paid leave for a qualified reason. Part-time employees may take the number of hours that they work over a two-week period. The paid leave is available for immediate use.

Under both provisions of the act, retaliation is prohibited based on an employee's request for leave or participation in a complaint about a violation of the act.

Rate of Leave Pay

The EFMLEA requires covered employers to pay 2/3 of the employee's regular rate of pay, subject to caps, for up to 10 weeks, as the first 10 days may be unpaid. The paid sick leave requires pay of at least 2/3 of the regular rate up to the regular rate of pay, depending on the triggering event.

Under the act, private educational institutions will receive immediate tax relief through payroll deductions. Public educational institutions will likely not benefit from the tax relief because they are typically funded through state aid or other revenue and treated differently.

Next Steps for Educational Institutions

The act creates significant new financial and administrative obligations for educational employers during these difficult times. While the FMLA is not applicable to public educational institutions during periods of shutdowns, these institutions should be prepared to address these issues when their doors reopen. Public and covered private institutions should work with counsel to prepare policies and strategize regarding implementation of both new leave provisions. The law in this area is changing rapidly and tax credits, revenue sources, and even new leave provisions should be anticipated. The act will remain in effect through Dec. 31, unless extended by the Secretary of Labor.

Stay healthy. We will get through this together.

Maria Fracassa Dwyer is the member-in-charge of Clark Hill's Detroit office. She focuses her practice on employment defense litigation and counseling. Dwyer is a trusted adviser to senior management across a wide range of industries including public and private employers.