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There are two new federal laws enacted in response to the coronavirus (“COVID-19”) pandemic regarding sick leave and family medical leave: the Emergency Family and Medical Leave Expansion Act (“E-FMLA”) and the Emergency Paid Sick Leave Act (“E-PSLA”).

Employees are eligible to take leave under this policy until December 31, 2020. Head Start of Lane County (the “Agency”) sets forth the following additional policies to describe how the Agency will implement these laws

Emergency FMLA Expansion Act Leave

Eligibility and Amount of Leave. In accordance with E-FMLA, the Agency will grant a leave of absence of up to twelve (12) weeks to any employee who has been employed by the Agency for at least thirty (30) calendar days because of a qualifying need related to a public health emergency (a “Qualifying Need”). Employees on furlough will not be eligible for leave under this policy. Please note that employees who may not have qualified for leave under FMLA generally (because they did not meet the service or other eligibility requirements) may still qualify for leave under E-FMLA.

For employees who qualify for FMLA leave generally, leave taken under E-FMLA will “count” against the employee’s twelve (12) week leave entitlement under FMLA, and any FMLA leave taken in the relevant FMLA leave year will “count” against the twelve (12) week leave entitlement provided under the E-FMLA. In other words, FMLA and E-FMLA both draw from
the same twelve (12) week leave bank.

Qualifying Need for Leave. An employee will have a Qualifying Need for E-FMLA leave only if:

  • the employee is unable to work (or telework);
  • due to a need to care for a son or daughter of the employee under 18 years of age (or a child age 18 or older who is incapable of self-care because of mental or physical disability);
  • because the school or place of care of such son or daughter has been closed;
  • due to a public health emergency.

A “public health emergency” is an emergency with respect to COVID-19 declared by a Federal, State, or local authority. You are considered to be unable to work if the Agency has work for you and, because of a Qualifying Need, you are unable to perform that work, either at your normal worksite or by means of telework

Scheduling Leave. If the need for leave is foreseeable, such as advance notice of the closure of a school or the unavailability of child care provider due to a public health emergency, an employee must provide the Agency with as much advance notice as is practicable.

  • Leave under this policy may not be taken on an intermittent basis. OR
  • If necessary, an employee may consult with the Agency to determine whether intermittent leave is feasible. The Agency will work with an employee on an intermittent leave schedule that works for both the employee and the Agency. If no such schedule can be agreed upon, the employee may not be permitted to take intermittent leave under this policy.

Requesting Leave and Certification of the Need for Leave. An Agency employee who wishes to take leave under this policy must make a written request using the Agency’s E-FMLA request form and providing the following information:

  • The employee’s name;
  • The dates for which leave is requested;
  • A statement that the employee is unable to work (including telework), due to a need to care for a son or daughter of the employee under 18 years of age because the school or place of care of such son or daughter has been closed due to a public health emergency;
  • The name and age of the child (or children) to be cared for;
  • The name of the school that has closed or place of care that is unavailable;
  • A representation that no other person will be providing care for the child during the period for which the employee is receiving leave under this policy; and
  • If the need for leave is for the employee to provide care during daylight hours for a child older than fourteen (14) years of age, a statement that special circumstances exist requiring the employee to provide care for the child.

An employee who is eligible for leave under this policy must provide the Agency with appropriate documentation supporting the need for leave. The appropriate government agencies are still determining what documentation is necessary to substantiate the need for leave. If those agencies require additional documentation, the Agency may require an employee to provide that documentation even if the employee has already been granted leave. Such additional documentation will be required in order to continue receiving leave under this policy.

Reinstatement. Employees will generally be reinstated to the position they held before beginning a leave, or will be placed in an equivalent position. If an employee and his or her manager have agreed on a definite date of return, the employee will generally be reinstated on that date if he or she notifies the manager in advance that he or she will be able to return. Failure to report to work upon expiration of leave will be deemed a voluntary termination.

The Agency may refuse to reinstate an employee in certain limited circumstances following a leave of absence if the employee is an exempt employee who is among the highest paid ten percent (10%) of all employees (both exempt and nonexempt) employed at or within seventy-five (75) miles of the worksite (a “key employee”). The Agency will advise an employee if he or she is a key employee at the time leave is requested.

Compensation. The first two (2) weeks of leave under this policy will be unpaid. However, employees may elect to substitute accrued but unused, vacation, personal, medical or sick leave benefits, including benefits under the E-PSLA (described below), to receive compensation during the first two (2) weeks of leave under this policy.

Any E-FMLA leave in excess of two (2) weeks will be paid at two-thirds (2/3) of the employee’s regular rate of pay, up to $200 per day and $10,000 in the aggregate. Paid leave under this policy will be calculated based on the number of hours the employee would otherwise be normally scheduled to work (including any scheduled overtime hours that are part of that normal schedule).

[Employees may choose to use existing PTO concurrently with E-FMLA in order to increase the employee’s pay up to the employee’s normal earnings. Any E-FMLA taken after PTO is exhausted will be paid at the two thirds (2/3) rate.] OR[Employees who take E-FMLA must use existing PTO concurrently until it is exhausted. While the employee is using existing PTO, the employee’s pay will be increased to the level of the employee’s normal earnings. Any E-FMLA taken after PTO is exhausted will be paid at the two thirds (2/3) rate.]

Regular Rate. For purposes of compensation under this policy, an employee’s regular rate is the average regular rate for all full workweeks over the six (6) months before the date on which an employee takes leave under this policy. If an employee has not worked for the Agency for six months prior to taking leave under this policy, the regular rate is the hourly wage or the hourly wage equivalent of the employee’s salary. Special rules apply when calculating the regular rate
for employees with alternative compensation arrangements or employees whose schedule varies from week to week.

Benefits. Subject to the terms, conditions and limitations of the applicable plans, during leave under this policy, group medical plan coverage for the employee and his or her dependents will be maintained at the level and under the conditions coverage would have been provided if the employee had remained continuously employed. The obligation continues up to a maximum of twelve (12) workweeks. Thereafter, an employee may elect to continue coverage pursuant to COBRA.

Emergency Paid Sick Leave Act

Eligibility and Amount of Leave. All employees of the Agency are eligible for the following amounts of sick leave:

  • Employees who regularly work forty (40) or more hours per week will be entitled to 80 hours of sick leave.
  • Employees who regularly work less than forty (40) hours per week will be entitled to sick leave in an amount based on the number of hours the employee works on average over a two-week period.
  • Special rules apply to prorate the amount of leave available for employees with varying schedules.

Qualifying Circumstances. Employees of the Agency are eligible for paid sick leave if they are unable to work (or telework) due to a need for leave because:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19 (such as a belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19);
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • The employee is caring for an individual who is subject to an order described in (1) or has been advised to self-quarantine as described in (2) (an individual must be someone with whom the employee has a personal relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined, such an immediate family member, roommate, or similar person);
  • The employee is caring for his or her son or daughter if the school or place of care of the employee’s son or daughter has been closed, or the child care provider of the employee’s son or daughter is unavailable, in either event, for reasons related to COVID-19; or
  • The employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

You are considered to be unable to work if the Agency has work for you and one of the reasons listed above prevents you from being able to perform that work, either onsite or through telework. If an employee does not have work to perform (for example, because the Agency has closed a work location or has reduced working hours due to a reduction in business demand or need), sick leave is not available under this policy for such absences or reduced working hours. For those absences, employees may use their accrued regular accrued sick, vacation or paid time off and/or may apply for unemployment insurance benefits. Employees on furlough will not be eligible for leave under this policy.

During any period of sick leave under this policy, medical care coverage for the employee and his or her dependents will continue at the same level.

Compensation. Any employee who is using paid sick leave for the reasons set forth in (1)-(3) above will be paid at the greater of:

  • An employee’s regular rate of pay subject to the maximums stated below; or
  • The minimum wage rate under federal, state, or local law for the locality in which an employee is employed, subject to the maximums stated below

Any employee who is using paid sick leave for the reasons set forth in (4)-(6) above will receive the greater of:

  • Two-thirds (2/3) of an employee’s regular rate of pay subject to the maximums stated below; or
  • Two-thirds (2/3) of the minimum wage rate under federal, state, or local law for the locality in which an employee is employed, subject to the maximums stated below.

Regular rate. For purposes of compensation under this policy, an employee’s regular rate is the average regular rate over the six (6) month period prior to date on which an employee takes leave under this policy. If an employee has not worked for the Agency for six months prior to taking leave under this policy, the regular rate is the average regular rate for each week the employee has worked for the Agency. Commissions, tips, or piece rates will be incorporated into the regular rate calculation.

Maximum Pay. Pay for sick leave taken for reasons (1), (2), or (3) under “Eligibility” will not exceed $511 per day, or $5,110 in the aggregate. Pay for sick leave taken for reasons (4), (5), or (6) under “Eligibility” will not exceed $200 per day, or $2,000 in the aggregate.

Requesting Leave and Certification of the Need for Leave. In order to be eligible for sick leave provided by this policy, an employee must make a written request to the Agency with the following information using the Agency’s Emergency Sick Leave request form:

  • The employee’s name;
  • The date or dates for which leave is requested;
  • The qualifying reason (as identified above) for requesting leave; and
  • A statement that the employee is unable to work (including telework), for that qualifying reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the written request must include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the written request must also include the following information:

  • The name and age of the child (or children) to be cared
  • The name of the school that has closed or place of care that is unavailable;
  • A representation that no other person will be providing care for the child during the period for which the employee is receiving leave under this policy; and
  • If the need for leave is for the employee to provide care during daylight hours for a child older than fourteen (14) years of age, a statement that special circumstances exist requiring the employee to provide care for the child.

An employee must provide the above information in order to receive paid sick leave under this policy. An employee receiving paid sick leave under this policy must provide reasonable notice of the need to continue receiving paid sick leave under this policy after the first workday (or portion thereof), that such employee receives paid sick leave.

[Leave under this policy may not be taken on an intermittent basis, and must be taken in full day increments.] OR [If necessary, an employee may consult with the Agency to determine whether intermittent leave is feasible if the employee is unable to telework and requires leave under this policy for any of the above reasons. The Agency will work with an employee on an intermittent leave schedule that works for both the employee and the Agency. If no such schedule can be agreed upon, the employee may not be permitted to take intermittent leave under this policy. If an employee is not teleworking, but rather is still performing work onsite, intermittent leave is only permitted if the employee requires leave to care for his or her son or daughter if their school or place of care has been closed, or the child care provider of the employee’s son or daughter is unavailable, in either event, due to COVID-19 precautions. In all other circumstances, employees who continue to perform services onsite may only take leave under this policy in full day increments.]

Employees may supplement the amount received under E-PSLA with pre-existing paid leave, up to the employee’s normal earnings.

Other Information. Employees are not required to use any other paid leave provided by the Agency before using paid sick leave provided under this policy. The Agency will not discharge, discipline, or in any manner discriminate against any employee as a result of having taken leave under this policy or filed a complaint, or instituted or caused to be instituted any proceeding relating to this policy, or who has testified or is about to testify in any such proceeding. Nothing in this policy should be construed to in any way diminish the rights or benefits that an employee is entitled to under any Federal, State, or local law, collective bargaining agreement, or existing Agency policy.

Unused sick leave under this policy has no cash value and will not be paid to an employee upon termination of employment. Sick leave under this policy will expire on December 31, 2020 and will not be carried over or applied to any other paid leave off or sick leave accrued by an employee under a separate Agency policy.

These two leave policies may be amended or modified based on further guidance from the U.S. Department of Labor and/or other government agencies as to their interpretation and implementation, and an employee may be required to provide additional documentation supporting the original request for leave. Any modification or amendment to these policies will be communicated to employees in writing. If you have any questions, please contact [Human
Resources].