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Returning to Work in a Pandemic: What Texas Employees Need to Know

Updated: Feb 17, 2022

Part 2 of 2

As I mentioned in my last post, many states in the country, including Texas, are easing coronavirus-related restrictions, and many Texas employers are beginning to reopen and recall their employees to work. But, the options available to those employees who are concerned about returning to work or can’t return safely isn’t very clear.

In last week’s post, I talked about one form of paid sick leave available to eligible employees called the Emergency Paid Sick Leave Act. In this post, I’ll talk about a second paid leave program recently passed by Congress: the Emergency Family Medical Leave Act, or EFMLA.

Program 2: Emergency Family Medical Leave Act (EFMLA)

What this act does is amend the already-existing Family Medical Leave Act, which provided up to 12 weeks of unpaid leave for employees dealing with their own or a family member’s serious illness.

Under the new Act, there are two important changes: (1) up to 10 weeks of paid leave, albeit at a reduced rate, for those who can’t work (meaning they also cannot or are not permitted to work remotely/telework) because they must care for a child whose school or daycare is closed for a COVID-19-related reason, and (2) making more employees eligible for FMLA leave.

What makes the EFMLA confusing for a lot of employers is how it interacts with other leave programs, including the one I discussed in the last post - the Emergency Paid Sick Leave Act. I think the simplest way to think of it is like this: for the first two weeks an employee is absent from work, they should look to the EPSLA for paid leave. If the employee will be out longer than two weeks, and specifically for child-care reasons, that’s when the EFMLA may kick in to provide additional paid leave in some circumstances.

What are those circumstances? To begin with, the employee must qualify for EFMLA leave, which means being employed (full or part-time) for at least 30 calendar days before the request is made. That’s different from the EPSLA, which does not have a so-called “waiting period.” However, 30 days is a significantly shorter time than is usually required for an employee to qualify for FMLA leave (six months in most circumstances).

Another important detail is that the EFMLA is only available to a very limited group of employees. It only applies to employees when they are unable to work (or telework) due to a need to care for a child because the child's school, daycare, or other child care provider is unavailable for reasons related to COVID-19. Those dealing with their own COVID-19 related health issues or taking care of a loved one with similar issues are not eligible for extended leave under the EFMLA.

This gets really confusing because both the EPLSA and EFMLA cover employees who can’t work because they have to take care of a child whose school or childcare provider isn’t available for COVD-19 related reasons. The key difference is the EPSLA applies for the first two weeks of leave and the EFMLA applies for up to ten additional weeks. In both cases, the employee would be paid at two-thirds of their regular rate. To further illustrate, consider this example:

Anna is a single mother. Anna has an eight-year-old daughter whose school is closed for the rest of the school year. Anna’s mother, who is her backup child care, has a pre-existing health condition that makes her more susceptible to COVD-19 and has been advised by her doctor to self-quarantine and isolate. Anna requests leave from her employer in order to take care of her child.

In this example, Anna would first request leave under the EPSLA for reason 5 (discussed in the last post). According to the EPSLA, Anna is entitled to two weeks or 80 hours of paid sick leave at two-thirds of her regular rate of pay. After the first two weeks, Anna would then request leave under the EFMLA, which applies only after the first two weeks has elapsed, and entitles Anna to an additional 10 weeks of paid leave at two-thirds her regular rate.

However, if Anna had not worked for the employer for 30 calendar days before requesting leave under the EFMLA, she would not qualify. Additionally, if she needed more than two weeks of paid leave for any reason other than to care for her child, the EFMLA would not apply. The EFMLA, therefore, applies in much more limited circumstances than the EPSLA.

Some other things to keep in mind: both types of paid leave only apply only to those employers with less than 500 employees. And for those taking leave because child care is not available because of COVID-19, there is an exception carved out for those companies with less than 25 employees when providing the leave would result in a significant hardship to the company. You can find out more about that exception here.

Bottom line: if you need leave for COVID-19 related reasons, you may be entitled to paid leave of some kind. Talk to your employer about their process for applying for the new leave. If you’re having difficulty getting your employer to comply or still have questions about your rights, feel free to contact me for further information.



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