The following FAQs were developed to answer questions submitted in response to NEA’s April 30, 2020, webinar on Members’ Paid Leave and Unemployment Rights under the new federal laws passed in response to the coronavirus.
EMERGENCY PAID SICK AND EXPANDED FMLA LEAVE UNDER THE FAMILIES UNDER THE FFCRA
Q: How long do the new leave benefits last for?
- The FFCRA leave benefits (emergency paid sick leave and expanded FMLA) begin April 1 and end December 31, 2020. The benefits do not roll over to the next calendar year.
- The emergency paid sick leave is for a total of 80 hours for full-time employees; part-time employees receive this paid leave for the average number of hours they work over a two-week period. The amount of pay depends on whether you are using the leave for your own needs (paid at your full rate of pay, capped at $511 per day) or to care for someone else (paid at 2/3 your regular rate, capped at $200 per day).
- The expanded FMLA is for a total of 12 weeks, 10 weeks of which are paid at 2/3 your regular rate (capped at $200 per day).
Q: Are adjunct/contingent faculty, substitute teachers, and graduate student employees entitled to the paid sick leave and expanded FMLA under the FFCRA?
Yes, if you are currently working for the employer. All employees – including temporary employees — of a covered employer are entitled to the new paid sick leave. 29 CFR § 826.30(a). All employees (except federal employees) who have been on the employer’s payroll for at least 30 days prior to requesting leave are entitled to the expanded FMLA. 29 CFR § 826.30(b).
If you are a W-2 employee of the employer (that is, not an independent contractor), you are entitled to use this leave for any of the qualifying reasons. Keep in mind, however, that if you are not currently employed by the employer or are not working for reasons other than these qualifying reasons for leave, you would not be entitled to the leave. So, if for example, you are a substitute teacher and you are not working because the school does not have work for you, you would not be able to take this leave to make up for hours you would ordinarily work if the school building were open and in regular session. In these situations where you are not working because the employer does not have work for you, you may be entitled to unemployment benefits.
The Department of Labor (DOL) also takes the position that you are not entitled to these FFCRA benefits if you are on a mandatory leave of absence from employment because the leave is for a reason other than one of the COVID-related qualifying reasons. [DOL FAQ #77].
Q: Are part-time workers or 9-month employees who usually don’t qualify for FMLA eligible for the expanded paid FMLA?
Yes. Even if you don’t qualify for regular FMLA because you do not meet the 1,250 hours per year and 12 months of employment required, you still may qualify for the new expanded FMLA leave.
Note that benefits for part-time employees are paid at 2/3 your regular rate of pay based on the average number of hours you are scheduled to work each day; if daily hours vary, it would be based on the average number of daily hours over a 6-month period; or if you have not been with the employer for a full 6 months, the reasonable expectation of the number of hours at the time of hiring. 29 CFR §§ 826.24, 826.21(b)(2)(ii).
Q: Does the FFCRA cover leave to care for a parent? For a grandchild? For an in-law? For a foster child? For a disabled adult child?
It depends on the type of leave (sick leave or expanded FMLA leave to care for a child whose school is closed) and your relationship with the person you are caring for.
Emergency paid sick leave can be used to care for “an individual” who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19. “Individual” is defined to include 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 or self-quarantined. 29 CFR § 826.20(a)(5). Under this definition, the sick leave could be used to care for a parent, grandchild, in-law, or even a roommate or close friend with whom you have a relationship that creates an expectation of such care.
The expanded FMLA can only be used to care for a “son or daughter” who is home because of a school/daycare closure or the unavailability of their normal childcare provider due to COVID-19. “Son or daughter” means your own child, including your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child. For additional information about what it means to be in loco parentis, see DOL Fact Sheet #28B: Family and Medical Leave Act (FMLA) leave for birth, placement, bonding or to care for a child with a serious health condition on the basis of an “in loco parentis” relationship. This leave is also available to care for an adult son or daughter who is incapable of self-care because of a mental or physical disability. [DOL FAQ #40].
Q: If I have no paid leave left, can I still receive sick leave through the FFCRA?
Yes. The emergency paid sick leave is additional paid leave public employers (and private employers with fewer than 500 employees, with some exceptions for small employers, as well as employers of healthcare providers and first responders) are required by federal law to provide over and above any existing leave you already have.
Q: Can my employer require me to use my paid leave at the same time or before using the FFCRA paid sick leave?
No. If you are unable to work for the following qualifying reasons related to COVID-19, you can take the emergency paid sick leave under the FFCRA first before using any other type of leave: (1) you are subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) you have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) you are experiencing symptoms of COVID-19 and are seeking a medical diagnosis; (4) you are caring for an individual who is subject to an order as described in (1), or who has been advised as described in (2); or (5) you are caring for your son or daughter whose school or place of care has been closed or whose child care provider is unavailable due to COVID-19 related reasons.
Your employer can’t require you to use other leave first, and they can’t reduce the amount of leave you are entitled to under an existing collective bargaining agreement or employer policy, or if you are entitled to paid sick leave under a state or local law. 29 CFR § 826.160.
Q: If I’ve already used FMLA leave for the year, can I still receive leave through the FFCRA?
Probably not. If you have used all of your FMLA leave for the year, you will not have leave available to take advantage of the expanded paid FMLA leave, but you are still entitled to the emergency paid sick leave.
The Department of Labor has interpreted the FFCRA to mean that the new expanded FMLA draws from the same 12-week total amount of FMLA to which an employee is entitled under the regular federal FMLA law. 29 CFR § 826.70. If you have used all 12 weeks of FMLA, check when your employer’s 12-month period for FMLA leave begins to determine when your new period of eligibility for FMLA leave 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 other employer policy.
Q: Are pregnant women eligible for any additional leave time?
As explained in the answer above, if you have used all FMLA leave for pregnancy-related reasons, you would not be entitled to additional leave under the expanded FMLA law, but there may be other laws that provide for additional leave.
Because the expanded FMLA comes out of the same 12-week “pot” of regular FMLA leave that most women will use for pregnancy-related medical conditions, recovery from childbirth and to bond with their new babies, the expanded FMLA does not offer any additional time off for pregnant women. There is nothing in the new federal laws that would offer additional leave specifically for pregnant women. However, many states have pregnancy accommodation laws and/or additional state family leave laws that may apply. Resources for researching state laws, as well as NEA’s Women Rising Guidance, can be found in the “Additional Resources” section below.
Q: Can my employer require me to use my paid leave at the same time or before using the FFCRA paid sick leave?
No. Your employer cannot require you to use paid sick leave for a COVID-19 related qualifying reason before or while you are using emergency paid sick leave. [DOL FAQ #32].
However, this is not the case with the expanded FMLA leave. The law allows the employer to require “concurrent” use of other leave while you are using the expanded FMLA leave if employer policies and any applicable agreements with the union allow for this. 29 CFR § 826.23. The employer can only require concurrent use of leave that is ordinarily available to you to use to care for a child, such as vacation or personal leave, and only if there are no other agreements with the union or employer policies that prohibit requiring such “concurrent use.” And if you exhaust any of your regular existing leave and still have some of the 12-weeks of expanded FMLA leave left, your employer must pay you at least 2/3 your regular rate (capped at $200 per day and $10,000 aggregate) for that remaining time. [DOL FAQ #31].
Q: If I want to, can I use my paid leave before or along with the FFCRA leave?
Yes, if your employer agrees. The emergency paid sick leave is in addition to your existing leave. It is only available through December 31, 2020, and does not roll over to next year. So, in almost all cases, it would make sense to use this leave first before using any other leave, if you have a qualifying reason to use it. If your employer agrees, however, you can use existing leave to supplement the amount you receive from this emergency paid sick leave benefit, up to your regular salary. [DOL FAQ #32].
For the expanded FMLA leave, the law provides that if there is no other prohibition in state law and the employer agrees, you can use other leave, such as vacation, to make up the remaining salary beyond the 2/3 pay (capped at $200 per day) you would receive while on this FMLA parenting leave. 29 CFR § 826.70(f).
Q: Can I be fired if I run out of sick leave to cover my absence due to being sick with COVID-19?
Although it is illegal for an employer to retaliate against you for taking leave under this new law, there is nothing in the law itself that prohibits an employer from terminating your employment if you have run out of leave and are still unable to return to work. However, there are other laws, such as the Americans with Disabilities Act (ADA) that may apply, depending on your circumstances. You may also be protected by a collective bargaining agreement, state law, or employer policy, which requires that termination be for “just cause.” If your employer terminates you or threatens to fire you because you are ill with COVID-19 and have run out of leave, you should contact your local representative as soon as possible to discuss your situation.
Q: Can I use FFCRA leave in half-day increments or some other flexible arrangement?
Yes, if your employer agrees. The law permits you to use both the paid sick leave if you are teleworking and the expanded FMLA leave “intermittently” as long as both you and your employer agree. You can agree to take it in any increment of time agreed upon. 29 CFR § 826.50(b)(1). Although the law does not require the employer to agree to such intermittent use of leave, the DOL encourages voluntary agreements between employers and employees that combine telework and intermittent leave. [DOL FAQ #20.]
Q: Will my job still be there when I return from using extended leave?
The law provides that you are entitled to return to work in your previous position or an equivalent position. But if there are layoffs that would have affected you regardless of whether you were on leave, you could still be laid off. [DOL FAQ #43.]
EXPANDED UNEMPLOYMENT BENEFITS UNDER THE CARES ACT
Q: I am an educator, and I’m concerned about being laid off in the fall. When should I start applying for unemployment?
In order to maximize your potential unemployment benefits, you should consider applying for unemployment as soon as the school term ends at the beginning of the summer—even if you have not been notified that layoffs will occur.
As a general rule, school employees are not eligible for unemployment benefits between academic terms (i.e., over the summer) if they have a contract or written “reasonable assurance” of employment for the following year. For teachers, this rule is mandated by federal law; for ESPs, it is the generally the product of state law or regulations.
If you do not have a contract or written “reasonable assurance” of employment for the following year, you are eligible for unemployment benefits immediately at the end school year.
If you do have a contract or written assurance of employment for the following year—and are nevertheless laid off in the fall—you are eligible for unemployment benefits. But the benefits you receive may be based on when you began to apply:
- If you wait until you are notified of the layoff, you will receive benefits beginning from the date of that application.
- If you are an ESP, you can receive benefits retroactive to the beginning of the summer, but only if you apply at the end of the school year and every week thereafter until benefits are granted.
- If you are a teacher, applying at the end of the school year and every week thereafter will not necessarily entitle you to retroactive benefits, but it can provide evidence that you should receive those benefits because any assurances of re-employment you were given earlier were not sufficiently certain.
By beginning to apply at the end of the school term, you can maximize your eligibility—not only for base unemployment benefits—but for the additional $600-per-week benefit created by the CARES Act. This benefit is due to expire on July 31, 2020.
Q: How does the CARES Act cover employees — like adjuncts, graduate assistants, and substitute teachers — who normally can’t get unemployment benefits?
Employees like adjuncts, graduate assistants, and substitute teachers are often ineligible for traditional unemployment benefits under state law. The CARES Act creates a new program, called Pandemic Unemployment Assistance (PUA), that extends the benefits of traditional unemployment insurance to those who are self-employed, seeking part-time employment, or who otherwise would not qualify for regular unemployment compensation. To be eligible for these PUA benefits, you must be ineligible for traditional unemployment benefits and you must have become unemployed or partially unemployed for one of the following COVID-19 related reasons:
- You have been diagnosed with COVID-19 or are experiencing symptoms of COVID-19 and are seeking a medical diagnosis.
- You are unable to work because a health care provider advised you to self-quarantine due to concerns related to COVID-19.
- A member of your household has been diagnosed with COVID-19.
- You are providing care for a family member or a member of your household who has been diagnosed with COVID-19.
- A child or other person in the household for whom you have primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 and the school or facility care is required for you to work.
- You became the breadwinner or major support for a household because the head of the household has died as a direct result of COVID-19.
- You have to quit your job as a direct result of COVID-19.
- Your place of employment is closed as a direct result of COVID-19.
- You were scheduled to start a job that is now unavailable as a direct result of the COVID-19 public health emergency.
- You are unable to reach the place of employment as a direct result of the COVID-19 public health emergency.
Q: I am a bus driver and I am still getting paid, but my hours have been reduced or I can no longer get the overtime I used to work. Can I get unemployment benefits for those lost wages?
You cannot recover unemployment benefits for lost overtime, but you may be eligible to recover for a reduction of normal, non-overtime hours. Both your eligibility for benefits and the amount of benefits for a reduction of hours will be determined by the particular formula used by your state. However, if you are eligible for even $1 in traditional unemployment or PUA benefits, you will receive the additional $600 per week provided by the CARES Act until July 31, 2020.
Q: If I work a second or third job that I have been laid off from or furloughed or have had my hours cut, can I get unemployment from that, even though I am still working at or getting paid from my primary job?
Maybe.The answer will depend on how your state calculates partial unemployment benefits. The formulas used for calculating these benefits generally include offsets for other sources of income, including other jobs. If the lost job paid comparatively little, or the remaining job provides something close to full-time employment, it is unlikely that you’ll be eligible for benefits. However, if you are eligible for even $1 in traditional unemployment or PUA benefits, you will receive the additional $600 per week provided by the CARES Act until July 31, 2020.
Q: If I usually work in the summer but that summer employment is now closed or I’ve had the offer rescinded, can I get unemployment for that?
Maybe. One of the COVID-19-related reasons that can make you eligible for the CARES Act’s new PUA unemployment benefits is if (1) you were “scheduled to start employment” and (2) you no longer have that job or are unable to reach it “as a direct result” of COVID-19. Under this standard, if you had a mere expectation of obtaining a summer job, but were not already “scheduled” to begin it, you are probably not eligible for benefits. Likewise, if the employer closed or rescinded the job for reasons unrelated to COVID-19, you would not be eligible. But, if you had already agreed-to a starting date with the summer employer and have now lost that job due to the COVID-19 crisis, you are likely eligible for PUA benefits. Also, if you are eligible for even $1 in PUA benefits, you will receive the additional $600 per week provided by the CARES Act until July 31, 2020. [DOL UIPL # 16-20.]
Q: If I’ve been ordered back to work and do not feel safe returning, can I refuse and still get unemployment? If I voluntarily stop working for fear of bringing home the virus to immunocompromised family (or because I am immunocompromised) can I get unemployment?
It will depend on the specific circumstances. The Department of Labor has made clear that voluntarily deciding to quit your job out of a general concern about exposure to COVID-19 does not make you eligible for unemployment benefits. At the same, the Department has acknowledged that you are likely eligible for benefits if you are out of work based on advice from a medical professional to self-quarantine because an auto-immune condition puts you at greater-than-average health risks from a COVID infection. [DOL UIPL # 16-20.] Furthermore, the Department has also told states that they have a certain amount of flexibility in administering traditional unemployment programs to allow individuals to claim benefits when they separate from work due to a “reasonable risk of exposure” or need to care for a family member. [DOL UIPL # 10-20.] You will be in the strongest position to claim benefits if you have an order from a medical professional directing you to self-quarantine based on the greater-than-average health risks to you or a household family member.
Q: Is there a separate application for CARES Act unemployment benefits vs. traditional unemployment benefits?
The answer varies from state to state. State unemployment agencies handle the applications for both traditional unemployment and PUA benefits, and they have taken varying approaches to how the applications are submitted and processed. For example, Maryland allows you to submit a single application for both types of benefits, Virginia requires applicants to first apply for traditional unemployment and then follows up with applicants who are denied but appear eligible for PUA benefits, and Pennsylvania requires PUA claimants to file a separate application. You can find a link to the applications for your state on the Department of Labor website.
- Department of Labor FAQs — https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#20
- State Leave Laws – https://www.nationalpartnership.org/our-work/resources/economic-justice/raising-expectations-2018.pdf
- Guidance on Pregnancy Accommodations and Family Leave (pre-COVID-19, does not include these new federal laws) – https://neaedjustice.org/wp-content/uploads/2020/01/Women-Rising-Guidance-FINAL-01.08.20.pdf
- Department of Labor FAQs — https://www.dol.gov/coronavirus/unemployment-insurance
- State Contact Information for Filing for Unemployment - https://www.careeronestop.org/localhelp/unemploymentbenefits/unemployment-benefits.aspx
- Summary of State Changes to Unemployment Insurance in Response to Covid-19: https://www.nelp.org/publication/unemployment-insurance-protections-response-covid-19-state-developments/
- More State Unemployment Resources — https://aflcio.org/covid-19/state-resources