The U.S. Department of Labor (DOL) has issued regulations clarifying that people who have to take time off work to care for family members with disabilities may be eligible for the new paid sick leave protections enacted by Congress in the wake of the COVID-19 pandemic.
Until the pandemic, federal protections for employees seeking leave to care for family members or their own health was limited to the Family Medical Leave Act (FMLA), which guarantees certain employees 12 weeks of unpaid leave to care for family members. The Families First Coronavirus Response Act (FFCRA), signed into law March 18, 2020, by President Trump, amends the FMLA to provide two weeks of paid family and sick leave for certain employees. These provisions are temporary, with an expiration scheduled for December 31, 2020.
The new law contains numerous limitations. It exempts employers with more than 500 employees, as well as employers with fewer than 50 employees if the leave protections pose a “substantial risk” to the company. In terms of compensation, workers with COVID-19 are entitled to two weeks of paid sick leave at their regular pay rate. Other workers are entitled to two weeks of paid sick leave at two-thirds of their regular salary, up to a certain maximum, if they have a “qualifying need related to a public health emergency.”
Upon the FFCRA’s passage, disability rights advocates raised concerns about whether the law protected people who needed to temporarily leave a job to care for family members with disabilities whose regular services have been disrupted by the COVID-19 pandemic. DOL regulations implementing the FFCRA, published in the Federal Register on April 6, make clear that the paid leave will cover care for a son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider is unavailable, due to a public health emergency.
The FFCRA, however, did not expressly define 'son and daughter.” Would it, as the earlier FMLA does, explicitly define “son and daughter” to not only include children under age 18, but also people of any age who “are incapable of self-care because of a mental or physical disability”?
To the relief of advocates, the implementing regulations explicitly state that employers should interpret the FFCRA and FMLA the same. In other words, family members caring for people with disabilities, even those over age 18, may be eligible for paid leave protections.
“The bill provides unprecedented paid leave benefits to American workers affected by the virus, while ensuring that businesses are reimbursed dollar-for-dollar,” DOL Secretary Eugene Scalia said in a news release.
Although a welcome step, many disability advocates still view the FFCRA as an incomplete set of protections.
“I am concerned that the rule is limited to parental caregivers,” Bethany Lilly, director of income policy at The Arc, told Disability Scoop. “We would like to see other family members included.”
Some states have enacted significantly more expansive sick leave protections than the federal government as a result of the pandemic. In New York State, for example, employers with more than 100 or more employees must provide 14 days of paid sick leave, employers with 10 to 99 employees or more than $1 million in business income must provide five paid sick days, and other employers, while not required to compensate for time off, must nonetheless provide job protections. California has passed a similar law.
Click here to read the full FFCRA regulation.