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Under the Emergency Family Medical Leave Extension Act, Employer Does Not Always Have to Restore Employee to Position



On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), which took effect on April 1, 2020, and will remain in effect through December 31, 2020. Among other things, the FFCRA seeks to assist both employees and employers affected by COVID-19.

The FFCRA includes, among other provisions, the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), which modifies the existing Family and Medical Leave Act of 1993 (“FMLA”). The EFMLEA requires certain employers to provide its employees with expanded family and medical leave if his/her child’s school or place of care is closed for reasons related to COVID-19. However, contrary to the original provisions of the FMLA, an employer may not be required to restore an employee to his/her job position after returning from leave under the EFMLEA.

Eligibility and Entitlement

The EFMLEA modifies the definitions of “employer” and “employee” under the FMLA. An “employer” is any person engaged in commerce or in any industry or activity affecting commerce who employs fewer than five hundred (500) employees. An “employee” is someone who has been employed at least thirty (30) days by the employer and seeks leave under the new leave provision.

If an employee and employer satisfy the modified definitions, the EFMLEA sets forth an additional leave entitlement under the FMLA that permits an eligible employee to request leave because of a qualifying need related to a public health emergency. A “qualifying need related to a public health emergency” means the employee is unable to work or telework because the employee needs to care for that employee’s child, who is under the age of eighteen (18), if the school or place of care has been closed, or the childcare provider of such child is unavailable due to a public health emergency. A “public health emergency” is subsequently defined as an emergency with respect to coronavirus declared by a Federal, State, or local authority.

Position Restoration

Generally, when an eligible employee takes leave under the FMLA or EFMLEA, an employer is thereafter required to restore the employee to the job position he/she held prior to taking leave or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. However, under both statutes, an employee is not protected from employment actions (i.e. layoffs) that would have impacted the employee regardless of taking leave. When an employer fails to restore an employee to a previously held position, an employer must be prepared to demonstrate that the employee would not otherwise have been employed upon returning from leave.

Additionally, under the EFMLEA, an employer with less than twenty-five (25) employees is not required to restore an employee that takes leave to his/her previously held position or an equivalent position if certain additional conditions are met. These conditions are: (i) the employee takes leave under the EFMLEA; (ii) the position does not exist due to economic conditions or other operating changes that affect employment and are caused by a public health emergency during leave; and (iii) the employer makes reasonable efforts to restore the employee to an equivalent position or if the employer cannot do so, thereafter makes reasonable efforts to contact the employee if an equivalent position later becomes available. This “contact period” is one (1) year beginning the earlier of (i) the date the qualifying need related to a public health emergency ends or (ii) a date twelve (12) weeks after the date the employee’s leave begins.

If you feel your rights under the Families First Coronavirus Response Act have been violated, or if you have any questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724.

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