President Donald J. Trump signed the Families First Coronavirus Response Act on March 18, 2020. The new law is effective April 2, 2020 and applies to all employers with less than 500 employees. Eligibility for Emergency FMLA leave is limited to caregivers who are unable to work or telework due to the need to care for a child under 18 if the school or place of care is closed or the childcare provider unavailable due to a significant public health emergency.
This E-Alert is to provide our clients and friends with an overview of the enhanced Family Leave provisions of the new law. However, it is important for employers to avoid a myopic approach when applying the complex federal and state patchwork of protective legislation to this unprecedented situation. Although hard to believe, lawsuits are already being filed against employers who have misstepped despite trying to do the right thing for their employees as well as for their business to survive.
Emergency Family And Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act (the “e-FMLA”) expands the federal Family and Medical Leave Act to add a new qualifying reason for leave related to the coronavirus and to provide partial paid e-FMLA leave. E-FMLA leave may be taken beginning April 2, 2020. The law sunsets on December 31, 2020.
Who is Covered?
The Act applies to all employers with fewer than 500 employees. Unlike FMLA which requires an employee to have one year of services and at least 1250 hours of work, an employee is eligible for e-FMLA leave if the employee has been employed only 30 calendar days by the employer from which the employee is requesting the leave.
What Qualifies for E-FMLA Leave?
Under the Act, eligible employees, who are unable to work or telework, may take up to 12 weeks of e-FMLA leave to care for a son or daughter under 18 years of age if the school or place of care has been closed, or the childcare provider of such son or daughter is unavailable, due to the current public health emergency. Other reasons for e-FMLA leave were omitted from the final bill. However, reasons for leave under the general FMLA would still apply, apparently unaffected and unpaid.
Is e-FMLA Leave Paid Leave?
E-FMLA is unpaid during the first 10 days, although the employee may be eligible for paid e-Sick Time. (See NELGPC E-Alert “Federal Emergency Paid Sick Time: Avoiding Missteps and Business Survival”) Employees may elect to substitute accrued vacation leave, personal leave, or medical or sick leave for unpaid leave, but the employer cannot require employees to use other paid leave. After the first 10 days, employers must provide paid e-FMLA leave at no less than two-thirds (2/3) of an employee’s “regular rate” of pay based on the number of hours the employee would otherwise be normally scheduled to work or, for variable hour employees, based on a formula provided in the Act. The pay is capped at $200 a day and $10,000 in the aggregate. Employees may elect to substitute accrued vacation leave, personal leave, or medical or sick leave for the one-third (1/3) of unpaid leave to be made “whole,” but employers may not require employees to do so.
Unlike regular FMLA leave, e-FMLA leave may not be used intermittently. If an employee foresees the need for e-FMLA leave, the employee must provide the employer with notice if practicable. E-FMLA will run concurrently with FMLA, but it is unclear whether employees who have already taken FMLA in the past twelve months receive a full e-FMLA 12 weeks or only the balance remaining. Although leave is protected, and workers are eligible for reinstatement, restoration does not apply to an employer with fewer than 25 employees if the position no longer exists due to economic conditions or other changes in the employer’s operations caused by the public health crisis. The reinstatement right applies for one year, if an equivalent position becomes available.
The new law provides an exemption to exclude healthcare providers and emergency responders from the definition of eligible employees. The law also provides that the Secretary of Labor may exempt small businesses with fewer than 50 employees from reinstating workers. He also may exempt such small businesses from the leave law if the requirements would “jeopardize the viability of the business as a going concern.” Special rules also apply to employers covered by multi-employer collective bargaining agreements.
Although employers pay for this benefit, they will receive a tax credit.
Employers must post a workplace notice and allow eligible employees to take this new paid benefit. Employers should review their current policies and amend if appropriate. The federal e-FMLA benefit is in addition to benefits otherwise provided by the employer and in addition to benefits available under other state or local laws.
© March 19, 2020