The COVID-19 pandemic has expanded the eligibility of American employees for employment-related benefits, including medical leave and unemployment compensation. As we first reported, President Donald Trump, on March 18, 2020, signed the Families First Coronavirus Response Act (FFCRA), “which provides paid leave under the Family Medical Leave Act and paid sick leave for absences resulting from COVID-19.” A week later, the Coronavirus Aid, Relief, and Economic Security (CARES) Act was passed by Congress and signed into law by President Trump on March 27, 2020, providing over $2 trillion economic relief, including expanded unemployment compensation benefits for those impacted by the COVID-19 pandemic.

Eligibility for benefits under both the FFCRA and CARES Act are applicable, in most circumstances, to all employees, including those who are not citizens or lawful permanent residents of the United States. These protections extend to immigrant employees in the United States through the sponsorship of a U.S. employer, as well as those who may or may not have lawful authorization to work in the United States.

The FFCRA & Immigrant Employees

The FFCRA provides for Emergency Paid Sick Leave and temporarily expand the Family and Medical Leave Act (FMLA). According to the Norris McLaughlin employment law blog post, the Emergency Paid Sick Leave program provides:

80 hours of paid sick leave to full-time employees. Paid sick leave is also available for part-time employees on a pro-rata basis. The leave can be used because an employee has been ordered the government or a health care provided to quarantine if they are seeking medical assistance because of COVID-19 symptoms, if they are taking care of an individual who has been quarantined or ordered to self-quarantine, or if they are taking care of a child whose school or daycare has closed because of COVID-19. Paid sick leave is to be paid at the employee’s salary with the following caps: $200 per day and $2,000 total per employee to care for a child or family member; $511 per day and a total of $5,110 total per employee to care for themselves. Employers with 50 employees or less can apply for an exemption if paying sick leave would jeopardize the viability of the business.

The FMLA temporary expansion provides for paid and job-protected family leave:

to employees to take care of a child under 18 years of age who is home because their school or daycare has been closed because of COVID-19. The first 10 days of this FMLA leave is unpaid. Thereafter, employees must be paid up to two-thirds of their salary and benefits will vary between full-time and part-time employees. This number is capped at $200 per day and $10,000 in total for each employee. Employers with 50 employees or less can apply for an exemption to the law if they can show that paying this benefit would jeopardize the viability of the business. Employers with 25 employees or less are exempt if an employee’s position is eliminated due to economic conditions.

The FFCRA and FMLA do not require an employer to verify an employee’s immigration status when determining whether the employee is eligible for paid leave benefits. Rather, the benefits are paid directly to employees by the employers in the same manner as wages are ordinarily paid, with a refundable tax credit to be paid to the employer at the end of its tax year that fully reimburses for the FFCRA and expanded FMLA benefits paid.

All employees that meet the FFCRA or FMLA eligibility criterion are entitled to the paid leave under either or both programs, regardless of the employee’s immigration status. Moreover, employees must understand that, generally, there is no involvement with any federal or state government agencies when seeking FFCRA and/or expanded FMLA relief and any employee, regardless of immigration status, may file a complaint with the U.S. Department of Labor Wage & Hour Division for any violations of the laws.

The CARES Act

The CARES Act created the Pandemic Emergency Unemployment Compensation Fund (PAUC) that extends regular unemployment insurance benefits by an additional 13 weeks beyond what states currently offer.

Any person that is not lawfully authorized to work in the United States cannot receive regular unemployment compensation. This bar is also applicable to the PAUC extended unemployment compensation period that the CARES Act authorized. For immigrant employees to be eligible for any unemployment insurance compensation benefits, they:

1. must be authorized to work in the United States at the time of filing for unemployment compensation benefits throughout the entire period that benefits are received;

2. must also have been permanently residing under color of law (“PRUCOL”) during the “base period” used to calculate the benefit amount. This means that the employee must have been authorized to work throughout the entire “base period” that was previously worked and is used to calculate the amount of unemployment compensation benefits.

Immigrant employees in the United States who have been lawfully employed for the necessary period required by unemployment compensation guidelines and have lawful authorization to work in the United States at the time of filing for unemployment compensation benefits are eligible for the benefits for the duration of their authorized employment in the United States. For example, an immigrant who entered the United States seeking asylum protection and was issued an employment authorization document several years ago, which remains current, and is valid for the foreseeable future, but who lost his or her job because of a COVID-19 layoff may be eligible for basic and PAUC unemployment compensation benefits, assuming minimum earnings requirements are met.