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Employer Obligations under the Emergency Family and Medical Leave Expansion Act

Introduction

On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), which took effect 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.

One section of the FFCRA is 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 only if his or her child’s school or place of care is closed for reasons related to COVID-19. Notably, employers are required to notify employees of this provision by posting a notice on its premises for employees to review.

Who qualifies as an “Employer” and “Employee”?

The EFMLEA modifies the definitions for “employer” and “employee” under the FMLA. A “employer” is any person engaged in commerce or in any industry or activity affecting commerce who employs fewer than five hundred (500) employees. However, employers with less than fifty (50) employees may be exempt if compliance would “jeopardize the viability of the business as a going concern.” An “employee” is someone who has been employed at least thirty (30) days by the employer and seeks leave under the new leave provision. To qualify for the expanded leave, the employer and employee must meet these threshold requirements.

Leave Requirement

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.

Unpaid and Paid Leave

The first ten (10) days of leave taken pursuant to the EFMLEA are unpaid. However, an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave. An employer is not permitted to require an employee to substitute leave. Once the ten (10) day unpaid leave period ends, an employer must thereafter provide paid leave for up to ten (10) weeks.

Restoration to Position Requirements

Typically, an employee protected by the FMLA, who meets the requirements thereunder, is entitled to job protection while on leave. This protection was modified by the EFMLEA. If an employer has less than twenty-five (25) employees, the “Restoration to position” provision of the FMLA does not apply if the following conditions are met: (i) the individual took leave under the new leave entitlement related to COVID-19; (ii) the position does not exist due to economic conditions or other operating changes or other changes in operating conditions that affect employment and were caused by a public health emergency during leave; (iii) the employer makes reasonable efforts to restore the employee to an equivalent position; and (iv) if the reasonable efforts fail, the employer makes reasonable efforts during a specified period to contact the employee if an equivalent position becomes available. The “specified period” is a one (1) year period beginning on the earlier of (i) the date qualifying need related to COVID-19 concludes or (ii) a date twelve (12) weeks after the date the employee’s leave related to COVID-19 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 Wrady Michel & King. You can contact us either online or by calling us at (205) 319-9724.