Families First Coronavirus Response Act – Emergency Family and Medical Leave Expansion

President Trump signed the Families First Coronavirus Response Act (H.R. 6201) on March 18, 2020.  It becomes effective on April 1, 2020. 

The Act contains eight Divisions.  This memorandum will address Division C – Emergency Family and Medical Leave Expansion Act.  Other memoranda will address other Divisions of the Act. 

Emergency Family and Medical Leave Expansion

Overview of FMLA.  The FMLA requires an employer of 50 or more employees to provide 12 weeks of unpaid leave to an employee for certain conditions, including a serious health condition or the birth, placement or adoption of a child.  To be eligible an employee must have worked at least one year for the employer, providing 1,250 hours of service and be within 75 miles of 49 other employees.  This FMLA expansion changes the rules significantly! 

Coverage Under FMLA Expansion.  A covered employer is a person engaged in commerce who employs fewer than 500 employees.  Thus, employers with fewer employees, who have not been covered by the FMLA, are covered by the FMLA Expansion, for the purposes listed in the FMLA Expansion. 

The Secretary of Labor may exempt business of less than 50 employees if the FMLA Expansion rights would jeopardize the viability of the business as a going concern. 

Public agencies are also covered by the FMLA Expansion. 

An eligible employee is an employee who has been employed for at least 30 calendar days.  This does not mean that the employee has worked 30 calendar days.  Nor is there any requirement that the employee provide a certain number of hours of work in order to be eligible.  All that is required is to be employed for at least 30 days. 

The term “employee” is defined the same as under the Fair Labor Standards Act (“FLSA”).  It is a person who is suffered or permitted to work by an employer.  The term excludes volunteers and independent contractors.  However, a worker who is misclassified as an independent contractor is an employee and is entitled to benefits under the Act. 

Qualifying Events.  An employee is eligible to take FMLA Expansion leave because of a “qualifying need related to a public health emergency.”  This phrase means that an employee is unable to work due to the need to care for a son or daughter under 18 years of age if the child’s school or place of care has been closed, or the child care provider[1] is unavailable due to a “public health emergency.”  The term “public health emergency” refers specifically to a COVID-19 emergency declared by a federal, state or local authority. 

Leave Rights.  The first 10 days of FMLA Expansion leave are unpaid.  The law makes reference to days.  Therefore, if an employee works six days per week, and starts on Monday of the workweek, (s)he will exhaust unpaid leave as of Thursday of the second week. 

An employee may elect to substitute paid leave for unpaid FMLA Expansion leave.  Paid leave includes vacation or PTO, or sick leave.  The law does not allow the employer to compel an employee to substitute paid leave for unpaid leave. 

After an employee takes 10 days of unpaid leave, (s)he is entitled to paid time off for the remaining 50 days of FMLA Expansion leave. 

Pay Calculation.  The employer must pay the eligible employee not less than 2/ 3^rds of an employee’s regular rate of pay[2] for the number of hours the employee would otherwise be normally scheduled to work.  However, there is a cap of $200 per day and $10,000 in the aggregate. 

An employer is eligible for tax credits for payments made to employees during FMLA Expansion leave. 

Job Restoration.  The right to return to the job depends on the number of employees in the business.  If the employer has fewer than 25 employees an employee who takes FMLA Expansion leave is not entitled to job restoration if certain conditions are met: 

·       The position held does not exist, due to economic conditions or operating conditions that affect employment and are caused by a public health emergency during the leave of absence;

·       The employer unsuccessfully made reasonable efforts to restore the employee to an equivalent position with equivalent terms and conditions;

·       The employer makes reasonable efforts to contact the employee if an equivalent position becomes available within one year of the date on which the qualifying need concludes or the date that is 12 weeks after the date on which the employee’s leave started. 

Contact a Fresno FMLA attorney today.

Douglas M. Larsen

[email protected]

(559) 256-5000