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Emergency Family and Medical Leave Expansion Act

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March 31st, 2020
Kavitha Janardhan, Esq.

On Wednesday, March 18, 2020, President Trump signed the Families First Coronavirus Response Act (the “FFCRA”), effective April 1 through December 31, 2020.  The FFCRA seeks to assist employees impacted by COVID-19 and covers employers with less than 500 employees and certain public agencies. This summary is focused on the Emergency Family and Medical Leave Expansion Act (“Emergency FMLA Expansion Act”) portion of the FFCRA.

The Emergency FMLA Expansion Act amends the Family and Medical Leave Act (FMLA) to provide the following additional protections to employees affected by COVID-19:

Leave Benefits: 

  • Under the Emergency FMLA Expansion Act, employees may take up to 12 weeks of job protected leave if they are unable to work, or to telework, due to a need to care for a minor child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

Employee Eligibility: 

  • The Emergency FMLA Expansion Act provides leave for employees who have been employed for at least 30 days. The existing FMLA requirement that an employee must be employed for one year, work 1250 hours and work in a location of 50 or more employees does not apply to leave taken under the Emergency FMLA Expansion Act.

Pay Requirements: 

  • The initial 10 days of leave under the Emergency FMLA Expansion Act may be unpaid. However, employees should be given the option to use accrued paid time off or sick leave during this initial period.
  • If an employee’s emergency FMLA leave extends beyond 10 days, it must be paid.
    • Full-time employees must be paid at a rate of two-thirds (2/3) the employee’s regular rate of pay, for the number of hours the employee is regularly scheduled to work.
    • Part-time employees must be paid based on a calculation of their average number of hours worked prior to taking leave.
  • The maximum amount an employer is required to pay an employee under the Emergency FMLA Expansion Act is $200 per day and $10,000 in the aggregate.

Employee Reinstatement: 

  • Employers with 25 or more employees must restore employees to their positions following their return from leave.
  • Employers with 25 or fewer employees may be exempt from this requirement if certain hardship conditions are met.

Small Business Exemption:

Businesses with fewer than 50 employees may be exempt from paid leave requirements if compliance would jeopardize the viability of the business as a going concern.   Under recent guidance from the Department of Labor, small business may claim this exemption if an authorized officer of the business has determined that:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Other Exemptions: 

  • Both the Emergency Paid Sick Leave Act and the Emergency FMLA Expansion Act allow employers of “health care providers” and “emergency responders” to exclude such employees from being eligible for paid leave. The Department of Labor has provided definitions of “health care providers” and “emergency responders”; however, the Department has advised employers to be “judicious” when using the definitions to exempt employees from the provisions of the FFCRA.

Notice Requirements: 

This alert contains a summary of key issues related to the Emergency Family and Medical Leave Expansion Act (“the Emergency FMLA Expansion Act”), which was enacted as part of the Families First Coronavirus Response Act (the “FFCRA”), signed on Wednesday, March 18, 2020.  This alert follows a prior alert related to the Federal Emergency Paid Sick Leave Act.

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