The Emergency Family and Medical Leave Expansion Act (“Act”) was passed on March 18, 2020 and amends the Family and Medical Leave Act of 1993 (“FMLA”). The Act takes effects no later than April 2, 2020. The Act is part of the Families First Coronavirus Response Act. A copy of the full text and history of the Act can be found online at Families First Coronavirus Response Act
The Act applies to any employer who has fewer than 500 employees and any employee who was employed for at least 30 days prior to submitting a request for leave. However, the Department of Labor has ability to exempt those small business with fewer than 50 employees if compliance with the Act would jeopardize the viability of the small business.
Leave Based on Qualifying Need Related to Public Health Emergency.
An employee may request leave under the Act if the employee is “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” For the purposes of the Act, a “public Health emergency” means “emergency with respect to COVID–19 declared by a Federal, State, or local authority”.
Types of Leave Available Under Emergency Family and Medical Leave Expansion Act.
In the event that an employee needs to request leave, the employee must notify the employer as soon as the employee reasonably believes that they will need to request leave. Once a request has been submitted, there are 2 types of leave that the employee will receive under the Act.
Unpaid Leave
The first 10 days of leave that an employee takes under the Act are unpaid. However, an employee can elect to substitute any accrued vacation, personal, medical, or sick leave for the unpaid leave. It is important to note that this choice to substitute leave is the employee’s choice, an employer cannot make an employee do this.
Paid Leave
After the first 10 days of leave have passed, if an employee needs to take additional time, such additional time is to be treated as paid leave. Under the FMLA eligible employees can take up to 12 weeks leave, so that means employees can take up to 10 weeks paid leave under the new amendment.
The amount to be paid is dependent varies based upon the employee and should be calculated using the following formula:
Wages to Be Paid = Amount Not Less Than 2/3 Of Employee’s Regular Pay Rate X the Number of Hours the Employee Would Normally Be Scheduled to Work.
The Act provides some relief for employers and limits the amount to be paid to each employee to $200 per day and $10,000 total.
For those employees whose schedules vary, an employer should use the number of hours the employee was scheduled on average over the 6-month period prior to the leave request to calculate the wages to be paid. If any employee has not been employed for 6 months, an employer should use the number of hours a day that the employee was reasonably expected to work at the time of hiring. The same cap applies here.
Return to Work Following a Public Health Emergency Under Emergency Family and Medical Leave Expansion Act.
In the event that an employee takes leave under the Act and then notifies the employer they are ready to return to work, an employer is required to restore the employee back to their prior position.
An exception exists for those employers who have 25 or fewer employees and whose business was modified by the public health emergency. In the event that the employee’s position no longer exist due to economic conditions or other changes in operating conditions of the employer: (i) that affect employment; and (ii) are caused by a public health emergency during the period of leave. But the employer must still make a reasonable effort to restore the employee.
If the employer is unable to restore the employee back to their prior position or give them an equivalent position, the employer is then required to contact the employee if an equivalent position becomes available within a year after the expiration: (i) of the public health emergency; or (ii) after the 3 month anniversary of employee’s leave request, whichever is earlier.
Special Provisions Within the Emergency Family and Medical Leave Expansion Act for Health Care Providers and Emergency Respondents
The Department of Labor has ability to exclude certain health care providers and emergency respondents from the definition of “eligible employee” under the Act. In addition, an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the Act.
Definitions Under the Emergency Family and Medical Leave Expansion Act
To assist in understanding the Emergency Family and Medical Leave Expansion Act and the changes made by it, Congress provided the following definitions:
The term ‘child care provider’ means a provider who receives compensation for providing child care services on a regular basis, including an ‘eligible child care provider’ (as defined in section 658P of the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9858n)).
The term ‘school’ means an ‘elementary school’ or ‘secondary school’ as such terms are defined in section 8101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).
Discrimination and other Violations Under the Emergency Family and Medical Leave Expansion Act
The Act expressly prohibits the taking of any discriminatory or retaliatory action against any employee as result of said employee taking FMLA leave under the Act, for reporting any violations of the Act, and/or for testifying or instituting proceedings related to the Act. Any violation of the Act will be treated as a violation of the FMLA
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