March 19, 2020

UPDATED 3/25/20: Emergency Family and Medical Leave Expansion Act Due to COVID-19

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act.  This was the second coronavirus-related act passed by Congress.

The Families First Coronavirus Response Act contains several important provisions, two of which are directly related to time off of work for employees related to COVID-19.  The first, called the “Emergency Family and Medical Leave Expansion Act” substantially expands the federal Family and Medical Leave Act (FMLA) and provides for (mostly) paid FMLA leave.  The second, called the “Emergency Paid Sick Leave Act” provides paid sick leave for many employees who otherwise may not receive such a benefit.

While both of these Acts provide for a significant amount of paid leave, the Families First Coronavirus Response Act also provides quarterly tax credits for employers (or reimbursement if costs exceed the tax credit) to cover the full cost of these benefits.  Questions regarding how the tax credits and reimbursements will work go beyond the scope of this blog and should be directed to your CPA, accountant, or tax lawyer.

This blog addresses the Emergency Family and Medical Leave Expansion Act.  Click here for my blog on the Emergency Paid Sick Leave Act.

Emergency Family and Medical Leave Expansion Act

This Emergency Family and Medical Leave Expansion Act significantly increases the number of employees who are eligible to receive FMLA leave and the number of employers who are required to provide FMLA leave, and expands the reasons for which an employee may take FMLA leave. This Act takes effect on April 1, 2020 (NOTE: This date has been updated based on guidance issued on 3/24/20 by the Department of Labor), and will remain in effect through December 31, 2020.

Eligible Employees: An eligible employee is one who has been employed for at least 30 calendar days by the employer from whom leave is requested.

Covered Employers: The Emergency Family and Medical Leave Expansion Act applies to employers with fewer than 500 employees.

  • Note that the Act does provide that the Secretary of Labor can issue regulations to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of the business, and can exclude healthcare providers and emergency responders from the definition of eligible employees.

COVID-19 Leave: In addition to the other qualifying reasons for FMLA leave, the Emergency Family and Medical Leave Expansion Act provides that an employee is eligible for FMLA leave if the employee is unable to work (or telework) because the employee needs to care for the employee’s child who is under the age of 18 due to the child’s school or place of care being closed or unavailable due to COVID-19.  This will be referred to in this blog as “COVID-19 Qualifying Reason.”  Where the need for leave is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.

Paid Leave

The amount of FMLA leave remains 12 weeks, just like other forms of FMLA leave.  If, however, FMLA leave is taken by an employee for a COVID-19 Qualifying Reason, then only the first ten (10) days of such leave can be unpaid.  But, it won’t really be unpaid because an employee would receive the benefit of emergency paid sick leave (see, Emergency Paid Sick Leave Act) during these initial ten (10) days.  Further, if an employee has accrued paid leave (such as vacation, paid time off, sick leave, etc.), the employee could choose to substitute such paid leave during these first ten (10) days.

After the first ten (10) days, the balance of the FMLA leave must be paid in an amount that equals at least two-thirds (2/3) of the employee’s regular rate of pay, up to a maximum of $200 per day and $10,000 in the aggregate per employee.  Pay must be based on the number of hours the employee would normally be scheduled to work.  If an employee’s hours vary from week to week, then pay should be based on the average number of hours the employee was scheduled per day over the 6-month period ending on the date on which the employee begins FMLA leave.  If the employee did not work over the six-month period, then pay is based on the employee’s reasonable expectation at the time of hiring of the average number of hours the employee would normally be scheduled to work.

Reinstatement

Ordinarily under FMLA, an employee must be returned to the employee’s pre-leave position or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.  While that remains the case for a leave under the Emergency Family and Medical Leave Expansion Act, there is an exception for employers with less than 25 employees if: (1) The reason for the FMLA leave is a COVID-19 Qualifying Reason, (2) the employee’s pre-leave position does not exist due to economic conditions or other changes in the employer’s operating conditions that affect employment and are caused by COVID-19, (3) the employer makes reasonable efforts to restore the employee to an equivalent position, and (4) if those efforts fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available.  The employer is obligated to make such reasonable efforts to contact the employee for one year from the earlier of the date on which the employee’s reason for leave concludes or the date that is 12 weeks after the date on which the employee’s leave for a COVID-19 Qualifying Reason commences.

Notice Poster

UPDATE: On 3/25/20, the Secretary of the Department of Labor issued a notice poster which can be found here DOL FFCRA Poster.  Employers should post this notice in a conspicuous location where notices to employees are customarily posted.

Exception for Health Care Providers and Emergency Responders

An employer of an employee who is a health care provider or emergency responder may elect to exclude such an employee from the provisions of the Emergency Family and Medical Leave Expansion Act.