Introduction to the Emergency Family and Medical Leave Expansion Act
On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (the “FFCRA”), which takes 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. Specifically for employees, the FFCRA introduced the Emergency Family and Medical Leave Expansion Act (the “Emergency FMLA Expansion Act”), which amends the Family Medical Leave Act of 1993 (the “FMLA”), to provide up to 12-weeks of job protected leave when an employee is unable to work—or telework—due to reasons related to COVID-19.
Who is eligible to take leave pursuant to the Emergency FMLA Expansion Act?
To qualify for leave pursuant to the Emergency FMLA Expansion Act, an employee need only to have worked for an employer, with fewer than 500 employees, for 30 calendar days prior to taking leave. There are no geographical requirements, as contemplated by the FMLA. There may be exemption(s) from this Act for businesses with under 50 employees, if permitting leave would jeopardize the viability of the business, but the Secretary of Labor has not issued any regulations at this time.
As you can imagine, health care providers and emergency responders are needed now more than ever. As such, the Emergency FMLA Expansion Act permits employers to elect to exclude these types of employees from taking qualified leave. As with the potential small business exemption(s), the Act also permits the Secretary of Labor to issue regulations related to the exclusion of health care providers and emergency responders from the Emergency FMLA Expansion Act.
What qualifies for leave pursuant to the Emergency FMLA Expansion Act?
An employee can take up to 12-weeks of leave for a “qualifying need related to a public health emergency,” meaning the employee can take leave if he or she is unable to work, or telework, due to a need for leave to care for his or her child under the age of 18 if the school or child care facility has been closed, or the child care provider is unavailable, due to an emergency with respect to COVID-19, declared by a Federal, State, or local authority.
An employee must provide notice of leave, as is practicable, once a need for leave related to an emergency with respect to COVID-19 is foreseeable.
Is leave pursuant to the Emergency FMLA Expansion Act paid?
Yes, in part. The first ten days of leave are unpaid; although, an employee may substitute accrued vacation, personal, or medical/sick leave. Notably, after the first ten days, an employer must provide paid leave for each day an employee takes leave related to COVID-19. The employer must pay the employee at least two-third (2/3) of his or her regular pay, as determined by the Fair Labor Standards Act (“FLSA”), with a cap at $200.00 a day and $10,000.00 in the aggregate. If an employee’s number of hours varies week to week, then the employee can receive paid leave for the average number of hours scheduled each day over the last 6-months; if that cannot be determined, then the employee can receive paid leave for the employer’s reasonable expectation of the average number of hours per day the employee would be scheduled to work.
What can an employee expect upon return from leave?
Similar to the FMLA, upon return from leave, pursuant to the Emergency FMLA Expansion Act, an employee is entitled to return to his or her same position, or, if that is not feasible, then to an equivalent position, with the same pay, benefits, and other terms and conditions of employment.
If an employer employs less than 25 employees, then an employee may not be entitled to restoration upon return from leave, if the position no longer exists due to economic conditions or other operating changes that affect employment and are caused by a public health emergency. If reasonable efforts to restore an employee to an equivalent position are not feasible, then an employer must make reasonable efforts to contact the employee if an equivalent position becomes available. The employer must contact the employee for one year beginning on the earlier date of—when the employee’s need for leave concludes or 12 weeks after the date the employee’s leave began.
When has an employer violated the Emergency FMLA Expansion Act?
An employer has violated an employee’s rights pursuant to the Emergency FMLA Expansion Act when it interferes with, restrains, or denies the exercise or the attempt to exercise, any right to take leave related to COVID-19. Additionally, an employer cannot discharge or in any other manner discriminate against an employee for opposing any practice made unlawful under the Emergency FMLA Expansion Act. If an employer has violated an employee’s rights pursuant to the Emergency FMLA Expansion Act, then the employee can sue for damages, as with the FMLA.
The Department of Labor has posted a Questions and Answers resource, which can be accessed on their website. The Questions and Answers serve as a useful tool for understanding the FFCRA, including the Emergency FMLA Expansion Act. For example, the Questions and Answers resource explains what documentation you may need to give your employer in order to get expanded family and medical leave and how prior FMLA leave affects an employee’s right to Emergency FMLA leave.
If you feel your rights under the Emergency FMLA Expansion Act have been violated, or if you have any other 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. We are here to serve you