24 Mar

FMLA Temporarily Expanded for Coronavirus

by , , , , and

On March 18, 2020, the federal government temporarily expanded the scope and application of the Family Medical Leave Act (FMLA), via the Families First Coronavirus Response Act (FFCRA) and its Emergency Family and Medical Leave Expansion Act (EFMLAE or Expanded FMLA).

This new law is effective on April 1, 2020 and will remain in effect until December 31, 2020. In sum, the Expanded FMLA provides 12-weeks of job-protected leave, with 10 weeks of paid leave, to parents who are unable to work because of school and daycare closures resulting from the coronavirus (COVID-19). 

Covered Employer Under Expanded FMLA

The traditional FMLA only applies to employers with 50 or more employees working within a 75-mile radius. This portion of the law remains unchanged, but the expanded portion of the law extends FMLA coverage to employers with fewer than 500 employees, without a radius restriction, but only for specified COVID-19-related reasons (see “Qualifying Reasons and Rights Under Expanded FMLA” below).

Notably, however, the Expanded FMLA allows small businesses (those with fewer than 50 employees), to seek an exemption from the Secretary of Labor if the required expanded FMLA leave would jeopardize the viability of their business. At this time, it is unknown how long that process will take and what the burden of proof will be for a small business seeking this exemption. Additionally, if an employee is a health care provider or emergency responder, that employee’s employer can elect to deny expanded FMLA leave under this new law.

This change in coverage is significant because thousands of employers not previously subject to the FMLA will now be required to provide job-protected (and also now paid – see “Paid Leave Under Expanded FMLA” below) FMLA leave. But again, this expanded FMLA leave is only to be given in specific COVID-related circumstances. 

Qualifying Reason and Rights Under Expanded FMLA

The Expansion provides employees with up to 12 weeks of job-protected leave for one reason only: if the employee cannot work (or telework) due to a need for leave to care for the son or daughter under 18, if the child’s 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 (i.e., COVID-19). Significantly, this is the only qualifying reason for emergency FMLA leave. In other words, there are no other COVID-19-related reasons (such as the employee’s own COVID-19 illness) to provide this expanded FMLA leave. Existing FMLA law covers employees who are unable to work because of a “serious health condition” of the employee or qualifying family member, or other narrow circumstances. If an employee, or a qualifying family member is infected with COVID-19, they would qualify under the existing FMLA job protected leave law but would not be entitled to paid FMLA leave for these reasons. 

Qualifying Employee Under Expanded FMLA

Under the Expanded FMLA, an employee need only have worked for the employer for 30 days before the designated leave may be eligible.

Employee’s Obligation Under Expanded FMLA

When the employee’s need for the expanded FMLA leave is foreseeable, the employee must provide the employer notice of such need when practicable.

Paid Leave Under Expanded FMLA

FMLA is typically an unpaid leave, but this new law adds a pay component for leaves under the Expanded FMLA (i.e., for parents who are unable to work due to school or daycare COVID-19 closures).  

The first 10 days of expanded FMLA leave may be unpaid, but an employee may elect to substitute accrued paid leave (like vacation or sick leave) to cover some or all of the 10-day unpaid period. Such paid leave would include Emergency Paid Sick Leave under the FFCRA.

After the 10-day period, the employer must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. However, the expanded FMLA limits this pay entitlement to $200 per day and $10,000 in the aggregate per employee.

Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking the expanded FMLA leave. If an employee has not worked for the employer for six months, the hours should be based on the reasonable expectation of the average number of hours per day that the employee would normally be scheduled to work.  

Again, this new paid leave component only applies to FMLA leave for parents who are unable to work due to school or daycare COVID-19 closures as specified under the new law. Employees who are on an FMLA leave because of their own or a family member’s COVID-19 infection would not be entitled to paid time off under the Expanded FMLA for these reasons, though they  are entitled to unpaid leave and may qualify for wage replacement benefits from the state of California in the form of paid family leave and/or disability insurance benefits.. Employees who are unable to work because of a COVID-19 business closureand who do not have children, would not be entitled to paid time off under the Expanded FMLA, though they may qualify for Unemployment Insurance benefits.  

Multi-Employer Bargaining Agreements

An employer signatory to a multiemployer collective bargaining agreement may, consistent with its bargaining obligations and its collective bargaining agreement, fulfill its obligations under the Expanded FMLA, by contributing to a multiemployer fund, plan, or program based on the paid leave each of its employees is entitled to under such section while working under the multiemployer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement for paid leave under the Expanded FMLA. In other words, these employers can share the obligation to contribute to the expanded FMLA leave, so long as the employee receive the same entitlement had it been under a single employer.

Tax Credit for Employers Providing Paid FMLA Leave and Sick Leave

Employers are entitled to a refundable tax credit equal to 100% of the qualified family leave wages paid by employers for each calendar quarter in accordance with the Expanded FMLA.

Restoration to Position Under Expanded FMLA

Employers with 25 or more employees will have the same obligation as under the traditional FMLA to return any employee who has taken the expanded FMLA leave to the same or equivalent position upon the return to work.

Employers with fewer than 25 employees are excluded from this requirement if the employee’s position no longer exists following the FMLA leave due to economic conditions or due to other changes in operating conditions caused by a public health emergency (i.e., COVID-19) during the period of the expanded FMLA leave. While these small employers are not under a strict obligation to restore the employee, for a period of one year, these small employers must make reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.

Notice

The FFCRA provides that all private employers with fewer than 500 employees (and public employers with at least one employee) shall post and keep posted, in conspicuous places on the workplace premises, a notice with the requirements of the Emergency Paid Sick Leave Act. Notably, however, the model notice prepared by the Department of Labor also covers the requirements of the Expanded FMLA. The model notice prepared by the Department of Labor can be found here and can be printed by an employer for use. However, we recommend that employers wait to print or download this poster until March 31, 2020 (the day before enactment), as the DOL may modify the poster until the date of enactment. 

The notice should be posted in places where notices to employees are customarily posted. Where employees are teleworking, an employer should email or direct mail this notice to employees, or post the notice on an internal or external website. If employees work in multiple buildings, the employer should post the notice in each building. The DOL is working to translate the notice into other languages and employers are not – at this time –  required to post the notice in multiple languages. This notice need not be shared with applicants or who have been laid off, but must be conveyed to any new hires.  

For more information on employers’ obligations to employees during the COVID-19 pandemic, suggested policies, or other employment issues, please contact your ALBB attorney or any member of our COVID-19 taskforce: Jennifer Branch (jbranch@albblaw.com), Kelly Folger (kfolger@albblaw.com), Melissa A. Lewis (mlewis@albblaw.com), Carrie Battilega Luetzow (cbluetzow@albblaw.com), Lara P. Besser (lbesser@albblaw.com) and Jessica Yang (jyang@albblaw.com).