New Federal Emergency Family Medical Leave due to Coronavirus

EXPANDED FAMILY MEDICAL LEAVE ACT DUE TO CORONAVIRUS

I have previously addressed the new Emergency Paid Sick Leave requirements under the Families First Coronavirus Response Act. The Act was signed on March 18, 2020. The act goes into effect “no later than 14 days” meaning April 1, 2020.

Please note, there may be changes to the act in the coming days. The legislature has until April 1, 2020 to add any amendments.

Here, I will discuss the changes to the Family Medical Leave Act (FMLA) pursuant to the Families First Coronavirus Response Act.

In short, the Families First Coronavirus Response Act changes the FMLA to provide emergency paid family leave to all employees of businesses who employ 500 people or less who are unable to work due to the need to care for a child who is no longer in school.

WHAT HAS CHANGED AND WHO IS ELIGIBLE?

As stated, the expansion only applies to individuals who are forced to stop working to care for their children because of school closing, or the individuals paid childcare provider is unavailable due to a public health emergency. If you were previously using unpaid child care, these changes do not apply to you.

The Act now requires employers with 500 or less employees to provide paid FMLA leave. (The FMLA only applies to employers with 50 or more employees).

The act requires an employee only work for 30 calendar days of employment. (The FMLA requires 12 months)

The emergency FMLA leave is only available for 12 weeks. However, the first 10 days are unpaid. Thus, paid leave, described below, is only available for 74 days.

An employer can require an individual to tele-work if available. This individual would not be entitled to paid FMLA leave.

HOW DOES THIS EFFECT PTO?

Under the act, the first 10 business days of this leave can be unpaid.

Employee may “elect” to use any accrued paid time off instead of the FMLA paid leave provided. Your employer cannot require you to use unpaid PTO during this time.

Employees can utilize the Emergency Paid Leave provided in the Families First Act more thoroughly discussed here during the 10 day period.

HOW MUCH PAY CAN I RECEIVE?

After the 10 business days of unpaid leave, you are then entitled to paid time off for the remaining 50 business days. Again, you can elect to use paid time off during this ten day period.

Employers are required to pay, “not less” than 2/3 of the regular rate of pay. However, no employee shall be entitled to more than $200 per day or $10,000.00 in total during the leave.

For employees who did not work a set number of hours for the past six months, employees will receive 2/3 of pay for the average time the employee was scheduled to work over the past six (6) months.

If you have not worked six months with your current position, the Act states you are to look at the “reasonable expectation” of hours to be worked when hired.

ARE ANY BUSINESSES EXEMPT?

Employers with more than 500 employees are not required to provide this amended paid FMLA.

Employers of 50 employees or less may be exempt, “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” These businesses should be careful making this determination. Refusing to pay under this section may result in the federal/state government auditing your business.

Further, employers with fewer than 25 employees will not be required to restore employees to their position, or an equivalent one, if:

1. the position held is eliminated; or
2. the employer’s operating conditions have changed due to the public health emergency in a way that affects employment; and
3. the employer attempts to restore the employee to an equivalent position, making reasonable efforts to do so for at least a year (from the date the leave concludes or 12 weeks after it begins, whichever is earlier).

The exemption from restoration is a change from FMLA as, under the FMLA, employers are required to provide job restoration to the same or a substantially similar position so long as employees return to work within the protected leave period.

FINAL NOTES

For employees, it is important you give as much notice as possible to your employer. This is both required under the act and will allow for your employer to make all accommodations.

For employers, as with the Emergency Paid Sick Leave, you will receive a tax credit equal to the amount paid to employees under this act.

You can read more about the Family Medical Leave Act here.

We at Grewal Law understand these are trying, confusing, times. We are doing our best to digest this information and provide the public with a clear, concise, understanding of the laws. If you have any questions, please contact Tim Seeger at Tseeger@4grewal.com.