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Legal Insight

FAQ: Educator Rights to Leave Under Federal Law

Learn how the Families First Coronavirus Response Act (FFCRA) impacts your right to take sick leave.
A mom tends to a sick child
Published: 07/17/2020

Below are some frequently asked questions about rights to leave under federal law. Most of your rights to leave will be found in collective bargaining agreements or in your employer’s Human Resources policies, as well as possibly some state and local laws that provide for paid sick and family leave and/or disability leave. Some provisions for leave for COVID-related quarantines or illness may also be included in agreements between state or local associations and employers. It is important to talk to your local association about any leave questions that may apply specifically to employees in your school or college.

AM I ENTITLED TO PAID LEAVE IF I GET SICK WITH COVID-19?

All public employees are entitled to paid sick leave under a federal law passed by Congress in March 2020, the Families First Coronavirus Response Act (FFCRA). (Note that the exemption for employers with more than 500 employees only applies to private employers; public schools are required to provide paid leave under the FFCRA.) Leave under the FFCRA is only available until December 31, 2020.

Full-time employees are entitled to up to a total of 80 hours of paid sick leave, paid at their full rate of pay (up to $511 per day), for the following reasons: if you cannot work or telework because you are experiencing symptoms of COVID-19 and are seeking a medical diagnosis; if you are required to quarantine because of a federal, state, or local order related to COVID-19; or if a health care provider has advised you to quarantine due to concerns related to COVID-19. Part-time employees also have a right to FFCRA paid sick leave for the average number of hours they work over a two-week period.

This leave is in addition to any paid sick leave you may already have. Your employer can’t require you to use other leave first, and they can’t reduce the amount of other leave you are entitled to under a current collective bargaining agreement, employer policy, or state or local law.

CAN I USE THIS LEAVE IF A FAMILY MEMBER GETS SICK WITH COVID-19?

You can also take FFCRA paid sick leave (at 2/3 your regular rate, up to $200 per day) if you are caring for an individual who has been advised by a health care provider to quarantine due to concerns related to COVID-19, or an individual who is required to quarantine because of a federal, state, or local order related to COVID-19. An “individual” includes immediate family members, a person who regularly resides in your home, or a similar person with whom you have a “relationship that creates an expectation” that you would care for that person if they were quarantined. Under this definition, the sick leave could be used to care for a parent, grandchild, in-law, or even a roommate or close friend.

Again, this leave is in addition to any leave you may already have, and you can use it first before using other types of leave. Keep in mind, however, that you are only entitled to total of 80 hours (or the equivalent hours in a two-week period for part-time employees) of emergency paid sick leave under the FFCRA, whether you use it for your own sick leave, to care for someone else, or some combination of qualifying reasons for the leave.

WHAT ABOUT IF I AM REQUIRED TO QUARANTINE BECAUSE OF EXPOSURE TO COVID-19?

FFCRA leave is also available if you cannot work or telework because you are required to quarantine by a federal, state or local order or on the advice of a medical provider. If you are directed to quarantine by your employer and you cannot “telework” while under quarantine, you may be entitled to use this FFCRA leave.  However, questions about the use of leave when you are directed to quarantine because of a potential exposure at school should be addressed in plans to return to in-person instruction or agreements negotiated between employers and local associations.

ARE THERE ANY OPTIONS IF MY OWN CHILD'S SCHOOL OR DAYCARE IS CLOSED DUE TO COVID-19?

You can use the two weeks (80 hours) of FFCRA paid sick leave (paid at the 2/3 rate) if you are caring for a child whose school or childcare provider is closed or unavailable due to COVID-related reasons.

You can also take an additional 10 weeks of paid leave (at 2/3 your regular rate, up to $200/day) of expanded Family and Medical Leave Act (FMLA) leave to care for a son or daughter whose school or childcare provider is closed or unavailable due to COVID-19. This additional type of FMLA leave under the FFCRA also expires at the end of December 2020.

“Son or daughter” means your own child, including a biological, adopted, or foster child, a stepchild, a legal ward, or a child for whom you have day-to-day responsibilities to care for or financially support. It also includes an adult son or daughter who needs your care due to a mental or physical disability. All public employees (except federal employees) who have been on the employer’s payroll for at least 30 days prior to requesting leave are entitled to this expanded FMLA leave, even those who do not qualify for regular FMLA. However, the new expanded FMLA draws from the same 12-week “pot” available under regular FMLA leave. If you have used all 12 weeks of FMLA leave, check when your employer’s 12-month period for FMLA begins to determine when your new period of eligibility begins.

Also be sure to check for any other types of family leave you may be able to access under state law, a collective bargaining agreement, or an employer policy.

IF I DON'T QUALIFY FOR PAID LEAVE, CAN I TAKE UNPAID LEAVE?

The regular federal Family and Medical Leave Act (FMLA) – not the Emergency FMLA expansion under the FFCRA -- provides for job-protected, unpaid leave of up to 12 weeks per year. In order to qualify for FMLA, you must have worked for the employer for 12 months and have worked 1,250 hours during the 12 months prior to taking the leave. FMLA can be taken as medical leave for your own serious health condition or as leave to care for an immediate family member (spouse, parent, child) with a serious health condition. If you meet the FMLA eligibility requirements and you have exhausted all other paid leave, you may still have entitlement to job-protected leave under the FMLA.

Additional information about your rights can be found here: https://educatingthroughcrisis.org/your-rights/

Always check with your local and state associations about additional rights you may have under state laws, collective bargaining agreements or memorandums of understanding with the employer, or policies.  If you believe your rights have been violated or you need assistance filing a legal complaint, you should contact an attorney for legal advice.

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