Joshua C. Black
Sweeping Changes to FMLA: Breaking Down the Emergency Family and Medical Leave Expansion Act
Updated: Mar 31, 2020
BY: Gregory C. Sinning, J.D. & Joshua C. Black, J.D.
Over the past days and weeks we have seen major shifts in governmental and social policies as our nation grapples with the effects of the coronavirus pandemic (“COVID-19”). Many of these polices have a direct effect on employee rights and the ability to take leave from employment when needed.
On Wednesday, March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (“the Bill”). The Bill’s purpose, in part, is to expand on protections for employees who may be affected in the coming weeks and months as we work as a society to stave the tide of COVID-19. The Bill in its entirety takes effect on April 1, 2020, and will remain in effect until December 31, 2020.
COVID-19 protections have been added to the Family and Medical Leave Act.
One major change to come from the Bill is a sweeping expansion of the Family and Medical Leave Act (“FMLA”) to assist American employees who are affected by COVID-19. Under this Emergency FMLA Expansion Act (“EFMLA”), any employee who has worked for the employer for 30 days or more will be eligible to take protected leave. This change will exponentially increase the number of workers who may qualify for FMLA because under the original FMLA, an eligible employee had to be employed for at least one year before qualifying for protected leave. It is worth noting that there are exceptions to who qualifies for expanded leave and some health care providers and first responders may not qualify. If you are unsure if you qualify for the expanded protection under the EFMLA, we recommend you speak with a competent employment attorney to assess your particular situation.
Who is eligible to take leave under the EFMLA?
An employee is eligible to take EFMLA leave if he or she has been with the employer for 30 days or more (subject to limited restrictions) and has a “qualifying need” related to a public health emergency such as COVID-19. An employee has a “qualifying need relating to a public health emergency” if the employee is unable to work—either in person or through work from home—due to a need to care for themselves or for a son or daughter under 18 years of age. Coverage is available if the employee’s child’s school or childcare facility has been closed or is unavailable due to a public health emergency (i.e. any emergency declared by a Federal, State, or local authority with respect to COVID-19).
How much leave can I take?
An eligible employee may take up to twelve weeks of leave under the EFMLA. With that said, not all of the leave is required to be paid. If an employee must take leave under the new EFMLA, the first 10 days may be unpaid. However, the employee will have the option to elect to use any accrued vacation, personal, medical, or sick leave to cover these days. To learn what vacation, personal, medical, or sick leave you have accrued or how to accrue it, we suggest contacting your employer’s Human Resources Department. If more than 10 days of leave are required because of a qualifying need related to a public health emergency, the employer must paythe employee for each day over 10 days. While being paid for the leave, the employee can expect 2/3 of their normal pay. The EFMLA limits the amount an employee can earn to $200.00 per day or $10,000.00 over the entire 12 weeks of leave allowed.
Are any employers exempt?
Similar to the FMLA, the EFMLA protects an employee’s position within the company during the employee’s leave. However, the Bill does exempt employers that employ fewer than 25 employees if a specific set of conditions are met. These conditions are met if a leave-taking employee's position is eliminated due to "economic conditions" or other changes that affect the employer's operations resulting from the public health emergency. The bill also allows the Secretary of Labor to exempt employers with fewer than 50 employees from the emergency FMLA leave requirement, "when the imposition of such requirements would jeopardize the viability of the business as a going concern." Because this will likely be a case-by-case analysis, an employee who believes they are entitled to leave under the new emergency provisions of FMLA should contact an employment attorney to discuss your particular situation and how your rights can be protected.
Additional information regarding EFMLA.
If you have any additional questions or concerns about EFMLA please do not hesitate to reach out to the authors. Mr. Black and Mr. Sinning may be reached at the Law Office of Joshua Black, PLC by telephone at 623-738-2225 or through the firm’s website www.azemploymentlawyer.com.
See full text of H.R. 6201 – Families First Coronavirus Response Act, last visited March 19, 2020 at: https://www.congress.gov/bill/116th-congress/house-bill/6201/text.