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FMLA guidelines and paid sick leave legal answers for employers

Enacted in 1993, the Family and Medical Leave Act (FMLA) is designed to protect employees by helping them balance their work responsibilities with family obligations related to medical issues. If you are an employer subject to the FMLA, it is important to understand your obligations and your employees’ rights under the law. 

In light of the coronavirus crisis, the federal government, along with some states and municipalities are taking additional emergency measures, including temporary changes to the law. For the latest advice specific to your business or employment practices, talk to a lawyer


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What is FMLA?

Outside of public health emergencies, the FMLA requires covered employers to provide employees with up to 12 weeks of unpaid leave each year, and to guarantee that employer-sponsored group health benefits will be maintained during such leave. FMLA also protects employees by ensuring that taking covered time off will not affect their employment.

How has FMLA/paid leave law changed as a result of the coronavirus outbreak? 

On March 18, 2020, The Families First Coronavirus Response Act was made law. It grants the following protections: 

  • Two weeks of paid sick leave for employees ordered to quarantine by a doctor or by federal, state or local mandate. This leave can also be used by employees with COVID-19 symptoms who are seeking a diagnosis, or those caring for someone who is diagnosed. Self-imposed social distancing is not covered, if not ordered by law or a medical professional. That said, this leave does apply for parents who can’t work during their children’s school closures.
  • Public-health emergency FMLA leave for parents who are not able to go to work (or telecommute) if their minor child’s school is closed or their child care provider is not available due to a public health emergency related to COVID-19. In most cases this leave guarantees 12 weeks of job protection and is partially-paid after two weeks unpaid, however there are exceptions for small employers.

When it comes to emergency FMLA leave, nearly all employers with under 500 employees are required to comply, however small businesses with less than 50 employees may be able to claim an exemption if the requirement would create a financial hardship for the business. Further, small businesses with fewer than 25 employees may not have to guarantee job protection. Some health care workers and emergency response professionals are also excluded. 

On the other hand, all employers with fewer than 500 employees must temporarily offer emergency paid sick leave regardless of the employee’s tenure. These emergency measures take effect on April 1, 2020 and end on December 31, 2020. Employers must comply within 15 days of the law’s enactment. Tax credits will also be provided.

The guidelines for calculating payments and offering job protection are complex, so if you have questions about FMLA compliance as an employer, it is best to talk to a lawyer.

Am I required to pay employees who miss work due to illness?

In certain states and municipalities, employers must provide employees with paid sick leave. However, outside of the emergency COVID-19 guidelines outlined above, the FMLA normally only requires employers to give employees up to 12 weeks of unpaid time off without the risk of losing their job.

In some cases, employers can require employees to use their available sick time or vacation days to cover some or all of their FMLA leave. This is subject to the employer’s policies around paid time off. If your employees have accrued paid time off, the law allows them to use these hours as income protection during their time away from work.

PTO vs. sick time: What’s the difference?

Paid sick leave provides employees with time off work with pay for illnesses or injuries. In contrast, paid time off (PTO) policies give employees time off for any reason, including vacation, illness, or personal leave. Employers who offer PTO to employees generally don’t also offer separate sick time benefits, as PTO encompasses sick leave.

Employers trying to decide whether to offer separate vacation time and sick time vs. offering PTO may want to consider state law implications of both approaches. In some states, employers must pay terminating employees for any accrued but unused PTO or vacation time, but not sick time. Regardless of what you decide to offer, it can be helpful to document your time off/sick leave policy in an Employee Handbook.

Am I required to offer paid sick leave?

As of March 19, 2020, 13 states and the District of Columbia have laws in place requiring covered employers to provide paid sick leave for workers. If you have employees in Arizona, California, Connecticut, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, or the state of Washington, you should understand your state’s requirements. 

As a result of the coronavirus outbreak, you may be required to offer paid sick leave under federal law, as well. A local lawyer can explain which laws apply to your business.

How much sick time am I legally required to offer?

In addition to emergency federal regulations, if your state has enacted mandatory sick leave requirements for employers and your company meets the definition of a covered employer under state law, you should become familiar with your legal obligation. Minimum paid sick leave requirements vary from state to state.

In some states, employers must give workers at least one hour of paid sick time for every 30 hours worked; in other states, the requirement is one hour for every 35 or 40 hours worked. Vermont’s requirement is one hour of paid leave for every 52 hours worked and in the District of Columbia, employers with 1-24 employees must provide one hour for every 87 hours worked.

Talk to a lawyer

For employers of any size, it is critical to understand your obligations under the FMLA and state-specific laws regarding time off. An employment lawyer can help ensure that your company’s policies and procedures are designed to comply with all applicable requirements.

Megan Derguti

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