On February 4, 2021, Governor Lamont issued Executive Order 10, which requires local and regional boards of education to continue to provide paid leave to employees consistent with the Emergency Paid Sick Leave Act (EPSLA) portion of the Families First Coronavirus Response Act (FFCRA). Notably, Executive Order 10 does not similarly require an extension of the FFCRA’s Emergency Family and Medical Leave Expansion Act (FMLA+). The key questions and answers concerning Executive Order 10 are as follows:
What was the status of FFCRA leave after December 31, 2020?
The requirement to provide EPSLA and FMLA+ leave expired on December 31, 2020. However, Congress authorized employers to continue to provide either or both forms of leave on a voluntary basis. In 2021, school districts have taken varying approaches in response to this authorization from Congress, including entering into new memoranda of agreement with their unions. As a result of Executive Order 10, however, all school districts now are required to continue providing paid leave to employees consistent with the EPSLA.
What has to be provided?
Paid leave consistent with the EPSLA, which is up to 80 hours of leave (or a part-time employee’s two-week equivalent) for the six qualifying reasons set forth below.
Do employees who have already exhausted their EPSLA leave get 80 additional hours?
No. Executive Order 10 provides that employees are eligible only for the 80 hours of paid sick leave for full-time employees (or a part-time employee’s two-week equivalent) to which they were initially entitled under the EPSLA. Accordingly, employees who have already exhausted their EPSLA leave are not entitled to any new leave. Employees who have used a portion of their EPSLA leave are entitled only to the unused portion they have left.
What does not have to be provided?
The FFCRA provided up to 10 weeks of FMLA+ leave for employees caring for a minor child whose school or place of care has been closed due to COVID-19. Executive Order 10 does not require school districts to continue to provide FMLA+ leave.
So is childcare no longer a reason for leave under Executive Order 10?
Yes and no. Caring for a child whose school or place of care is closed due to COVID-19 is a legitimate use of EPLSA, but such leave cannot exceed 80 hours.
How long do we have to provide EPSLA benefits to employees?
For the duration of the public health and civil preparedness emergencies, unless earlier modified by Governor Lamont. The Governor’s Executive Orders are set to expire on April 20, 2021; however, those orders could be extended.
Does Executive Order 10 apply EPSLA retroactively?
Yes. Executive Order 10 states that it is retroactive to December 31, 2020. School districts should review their leave requests and practices since December 31, 2020, including any existing memoranda of agreement with their unions, to determine if employees took leave that may be subject to Executive Order 10. We recommend that school districts discuss any retroactive application of Executive Order 10 with their legal counsel.
School districts should also re-familiarize themselves with the ins and outs of the EPSLA and the various qualifying reasons thereunder. For example, under the EPSLA, employers are required to provide paid sick leave if the employee is unable to work, or telework, if the employee:
- Is subject to federal, state, or local quarantine or isolation order;
- Has been advised by a healthcare provider to self-quarantine;
- Is experiencing symptoms of COVID-19;
- Is caring for a quarantined individual;
- Is caring for a minor child whose school or place of care has been closed due to COVID-19; or
- Is experiencing any other substantially similar condition related to COVID-19.
Other key provisions of the EPSLA include the following:
- Paid sick leave is available for immediate use, regardless of how long an employee has been employed.
- EPSLA leave must be paid at the employee’s regular rate of pay or minimum wage, whichever is greater, for uses 1-3 above (self-care or quarantine), and at two thirds the employee’s regular rate of pay for uses 4-6 (care of another).
- Paid leave is capped at $511 per day and $5,110 in the aggregate for uses 1-3 (self-care or quarantine) and is capped at $200 per day and $2,000 in the aggregate for uses 4-6 (care of another).
- An employee may use paid sick leave under the EPSLA before using other available leave. Employers, however, cannot require employees to use EPSLA paid sick leave before other leave if they do not wish to do so.
- Employers may not discriminate or retaliate against employees who take paid sick leave.
Shipman continues to monitor changes to state and federal law in the wake of this dynamic and unprecedented public health crisis, and will provide additional guidance as more information becomes available. Please continue to monitor ctschoollaw.com for updates. If you have specific questions about Executive Order 10, its implications, or related issues, please contact Tyler Bischoff, Peter Murphy, or any member of our School Law Group.