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What to Say to Your Employer: Tips for Taking Emergency Paid Leave under the Families First Coronavirus Response Act

Here are some common scenarios that might come up in the process of taking emergency paid sick/family leave under the federal Families First Coronavirus Response Act (FFCRA) and some tips on how to approach them. Please keep in mind that these tips are not legal advice about what you should necessarily do in your own situation, and you should not treat them as legal advice.

Scenario 1: You are talking to your employer about taking emergency paid leave for the first time.

Let your employer know as soon as possible that you plan to take emergency paid leave. Remember, as of April 1, 2020, and up until December 31, 2020, emergency paid sick time is available for immediate use by all covered employees, regardless of how long you have worked for your employer. Emergency paid family leave is available if you have worked for your employer for at least 30 days.

Let your employer know as soon as possible:

  1. Your reason for taking emergency leave under the FFCRA;
  2. When you expect to start your emergency leave;
  3. How long you expect to be on emergency leave; and
  4. How you wish to structure your emergency leave (continuously or intermittently).*

*Under some circumstances, you and your employer may agree that you can take your leave intermittently (broken up into increments of time) rather than continuously (all at once).

What to say: I want to let you know I will be taking emergency paid leave under the Families First Coronavirus Response Act because _________. I am going to take _____ weeks/days of leave. I plan to start my leave on _________. [If applicable] If possible, I’d like to take this leave intermittently; can we discuss an arrangement that would suit both our needs?

Examples:

a. I want to let you know I need to take emergency paid sick leave starting tomorrow because the governor has issued a stay-at-home order that prevents me from going into work. I plan to return to work on May 1st when this order expires, unless the order is extended at that point, in which case I would need to use the rest of my emergency paid sick leave.

b. I want to let you know I need to take emergency paid sick leave immediately for the next two weeks because my doctor has advised me to self-quarantine due to concerns related to the coronavirus.  

c. I want to let you know I need to take emergency paid sick leave immediately because I am experiencing coronavirus symptoms and I’m seeking a medical diagnosis. I understand from my doctor that it will take me at least seven days to get test results. I will let you know at that point whether I require additional leave.

d. I want to let you know I need to take emergency paid sick leave starting tomorrow to care for my spouse who has been advised by a healthcare provider to self-quarantine for the next two weeks due to concerns related to the coronavirus. If possible, I’d like to continue working from home for part of the day, while taking emergency leave for the rest of the day. Can we discuss an arrangement that would suit both our needs? 

e. I want to let you know I need to take emergency paid sick leave starting on April 20th because my child’s daycare will be closing on that date. However, if possible, I’d like to continue to come into work on Thursdays because my spouse will be available on that day to provide care. If my child’s daycare is still closed after I use up my emergency paid sick leave, I will need to take emergency paid family leave.  

f. I want to let you know I need to take emergency paid sick leave starting tomorrow because my children’s school is closed due to the coronavirus. Their school will be closed for the rest of the year, so after I exhaust my emergency paid sick leave, I will need to take emergency paid family leave until June 20th.

Listen carefully and take careful notes after your conversation, especially if anything sounded strange or wrong to you.

Scenario 2: You believe you are eligible for emergency paid leave, but your employer says they aren’t subject to the law or that you are not covered.  

Remember, the law automatically exempts private employers with 500 or more employees, but the exemption for businesses with fewer than 50 employees is not automatic and applies only under certain circumstances. While qualifying healthcare providers and emergency responders may claim an exemption, they are not prohibited from providing paid leave under the law and, like other employers with fewer than 500 employees, will be eligible for quarterly tax credits to offset the cost if they choose to do so.

A. Your employer wrongly says they do not have to provide anyone with emergency paid leave.

If your employer says they do not have to provide emergency paid leave, explain why you believe they are in fact required to provide emergency paid leave under the FFCRA.

What to say:

Employer: We don’t have to provide emergency paid leave because _____________.

You: It’s my understanding that under the Families First Coronavirus Response Act (explanation of why your employer is subject to the law).

Examples:

a. Employer: We don’t have to provide emergency paid leave. We’re exempt.

You: It’s my understanding that all private employers that have less than 500 employees are covered employers under the Families First Coronavirus Response Act.

b. Employer: We don’t have to provide emergency paid leave because we have less than 50 employees.

You: It’s my understanding that the exemption for businesses with less than 50 employees applies only to leave requested due to school or place of care closures and even then, it applies only under certain circumstances. Businesses with less than 50 employees would have to be able to meet specific criteria from the Department of Labor in order to qualify for this exemption, showing that providing the leave would jeopardize the business’s viability.  

B. Your employer wrongly says you are not eligible for emergency paid leave.

If your employer wrongly says you are not eligible for emergency paid leave, explain to him or her why you believe you are eligible.

What to say:

Employer: You’re not eligible for emergency paid leave because _____________.

You: It’s my understanding that under the Families First Coronavirus Response Act, (explanation of why you are entitled to coverage).

Examples:

a. Employer: You’re not eligible for emergency paid sick leave because you don’t have a positive COVID-19 diagnosis yet.

You: It’s my understanding that under the law, employees are entitled to emergency paid sick leave if they are experiencing coronavirus symptoms and are seeking a medical diagnosis.  

b. Employer: You’re not eligible for emergency paid sick leave because you’ve only worked here for two weeks.

You: It’s my understanding that under the law, full-time employees are entitled to 80 hours of emergency paid sick leave (and part-time workers are entitled to emergency paid sick leave in the amount they would have worked in a two-week period) regardless of how long they’ve been working at their current place of employment. It’s only for extended leave beyond that for school or place of care closures due to COVID-19 (emergency paid family leave) that a 30-day waiting period can be applied.

c. Employer: You’re not eligible for emergency paid family leave because you haven’t worked here for one year.

You: It’s my understanding that under the law, employees are eligible for emergency paid family leave to care for a child whose school or place of care has been closed due to the coronavirus if they’ve worked at their job for at least 30 days, even though FMLA normally does require that you have been employed for at least one year.

d. Employer: You’re not eligible for emergency paid sick/family leave because you’re part-time.

You: It’s my understanding that under the law, part-time employees are eligible for emergency paid sick leave for up to the average number of hours they normally work over a two-week period and can also take the full amount of extended emergency paid family leave to care for a child whose school or place of care has been closed due to COVID-19.

e. Employer: You’re not eligible for emergency paid leave because you’re an essential worker.

You: It’s my understanding that under the law, only healthcare workers and emergency responders may be exempt and that I don’t fit into either of these categories.

Scenario 3: Your employer says you can only take unpaid leave and refuses to pay you.

Under the law, covered employers are responsible for paying eligible employees for emergency paid sick and family leave. It may be helpful to remind employers who are reluctant to comply with this requirement that the law gives private employers the right to a quarterly tax credit in an amount equal to 100% of the qualified sick leave wages and family leave wages paid by the employer during that quarter (not to exceed the applicable compensation caps).

What to say:

Employer: You can take lave, but we can’t/won’t pay you.

You: It’s my understanding that the Families First Coronavirus Response Act says I have to be paid during this leave, but also that you, as the employer, would be entitled to receive a quarterly tax credit in order to offset the cost of having to comply with this requirement.

Scenario 4: Your employer says they can’t promise to hold your job open while you are on emergency leave. 

In general, after you take emergency paid leave, you have the right to return to the same job you had before you took leave, or to a nearly equivalent job with equivalent pay, benefits, and other terms/conditions of employment. It is against the law for your employer to punish, penalize, or fire you for requesting or taking paid emergency paid leave.

If your employer is threatening to fire you for taking emergency paid leave, you must use your judgment about how you want to approach the situation. If you feel comfortable speaking to your employer, here are some ways you might phrase it:

What to say:

  • It is my understanding that under the Families First Coronavirus Response Act, my job must be protected while I am on leave.
  • I did some research, and it’s my understanding that I have the right to my job back after I take emergency paid leave.

It may be helpful to bring resources with you to give to your employer. You can find resources at https://www.abetterbalance.org/covid19/.

If you feel your emergency paid sick leave rights have been violated, you can file a complaint with the Department of Labor. Different procedures may apply for government employees. If your employer has more than 50 employees, you may also be able to file a lawsuit if your rights to emergency family leave have been violated.

If you have been fired for taking emergency paid leave, give us a call at 1-833-NEED-ABB.

 

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