Congress Passes Emergency Family and Medical Leave Expansion Act
Congress passed the revised Families First Coronavirus Response Act today, March 18, 2020. This update will focus on the Final Version of the Emergency Family and Medical Leave Expansion Act (“EFMLA”). Please note that the President still needs to sign this Bill in order for it to become law.
Employees are Able to Take EFMLA Through December 31, 2020
Section 3012(a) of the Act amends the Family Medical Leave Act to allow for eligible individuals to take such leave because of a Qualifying Need Related to a Public Health Emergency from the date of enactment through December 31, 2020.
Employee Need Only Be Employed for 30 Days to be Eligible
Section 110(a)(1)(A) defines Eligible Employee as one who has been employed for at least 30 calendar days by the employer may request such leave. The definition of eligible employee was expanded by amendment to include those who were (1) were laid off by the employer on March 1, 2020 or later, (2) had worked for the employer for not less than 30 of the last 60 calendar days prior to the layoff, and (3) was rehired by the employer. (NOTE: We expect regulations to assist in our interpretation of this Act as a whole; however, employers should consult counsel regarding the interpretation of the phrase “had worked for the employer not less than 30…”)
EFMLA Applies to Employers with Fewer Than 500 Employees
Section 110(a)(1)(B) makes EFMLA applicable to all employers with fewer than 500 employees.
Eligible Employees May Take EFMLA to Care for Child
An employee may take EFMLA where the Employee is unable to work (or telework) due to the need for leave to:
Care for the son or daughter under 18 years of age of such employee if the school has been closed due to a Public Health Emergency.
Care for the son or daughter under 18 years of age of such employee if the Place of Care has been closed due to a Public Health Emergency.
The Child Care Provider of such son or daughter is unavailable due to a Public Health Emergency.
It is worth noting that the Act explicitly includes “telework.” It follows that if your employee’s child’s school, or day care is closed due to COVID-19, and they are still able to work from home, then they are not eligible for this leave. If one of your employees requests leave under EFMLA, employers should offer the option of working remotely, if possible. If the employee can work remotely, then that employee is not entitled to EFMLA leave, since they can “telework.”
NOTE: When faced with an EFMLA request, it is important for employers to keep in mind the potential causes of action that go along with a “normal” FMLA requests such as interference.
Regulations Exempting Employers with 50 or Less Employees Might be Drafted
The Act explains that the Secretary of Labor “shall have the authority to issue regulations for good cause.” Such regulations including an exemption for small businesses with fewer than 50 employees when the imposition of [the leave] would jeopardize the viability of the business as a going concern.
It must be highlighted that this section does not automatically exempt employers with less than 50 employees. This section simply says that the Secretary of Labor has authority to issue regulations that provide an exemption for small businesses, when the leave would jeopardize the business.
It follows that in order for small businesses to get this exemption, (1) the Secretary of Labor needs to draft a regulation regarding such exemption, and (2) the company needs to demonstrate the imposition warranting the exemption.
Relationship to Paid Leave
The first ten days of the EFMLA leave may be unpaid. During EFMLA, at any time, the employee may elect to take any accrued vacation leave, personal leave, or medical or sick leave, just as they would under “regular” FMLA Leave. Remember, substitution means that the accrued personal or medical leave runs concurrently with the FMLA leave.
Employers Must Pay 2/3 of Employee Pay for the Remaining 10 Weeks After the First Two Weeks
EFMLA includes that after the initial 10 days of EFMLA, the employer must then pay the employee no less than 2/3 of the employee’s regular rate of pay for the remaining 10 weeks of the leave. The Act explains how to calculate such rate.
So, when an employee takes EFMLA, days 1-10 are either unpaid, the employee may use accrued PTO or the employee may take Paid Sick Leave. Then, the remaining 10 weeks are paid at 2/3 the rate of the employee’s regular rate of pay.
Restoration to Position
As we know, the FMLA is job-protected leave. Section 104(a)(1) of the FMLA provides that employees after taking such leave are to be restored to their position of employment. The same is true under the EFMLA; however, Section 110(d)(1) explains that the restoration obligation shall not apply to employers who employ fewer than 25 employees if the following conditions are met:
The employee takes EFMLA;
The position held by the employee when the leave commenced does not exist due to the economic conditions or other changes in operating conditions of the employer that (1) affect employment; and (2) are caused by a public health crisis during the period of leave.
Employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, which equivalent benefits, pay, and other terms and conditions of employment.
The legislation explains that where an employer makes reasonable efforts to restore the employee to same or equivalent position, and that employer fails to restore the employee, then the employer must make reasonable efforts to contact the employee if an equivalent position becomes available.
Under Section 110(f), the Employer would only need to make these reasonable efforts for a period of 1 year after the date the employee’s EFMLA leave concludes, or 1 year after the date the date that is 12 weeks after the employee’s EFMLA commences- whichever is sooner.
Special Rule for Employers with Less Than 50 Employees
Section 3104 of the Act explains that employees cannot sue their employers for violations where the employers has less than 50 employees. This is extremely helpful for employers. However, it must be noted that the Act does not protect employers with less than 50 employee from actions taken by the Secretary of Labor.
Health Care Providers May Exclude Their Employees from this Act
The Act explains that an employer who is a health are provider may elect to exclude such employee from the application of this Act.
Effective Date
This Act takes effect no later than 15 days after the enactment. While this Act has passed congress, it still has to be signed by the President in order to become law. Upon execution by the President this will become law.
Tax Credits
Division G of the Families First Coronavirus Response Act outline tax credits for employers. The specifics of which are not discussed in this article.
Next Steps
Please do not hesitate to reach out with any questions or concerns as they relate to this Bill and your business.