Proposed FMLA Amendment Would Make the Act Applicable to More Employers

As explained in my previous blog article, the applicability of FMLA as it relates to COVID-19 must be handled on a case by case basis. That article was based on the FMLA as it currently stands, as of March 14, 2020.

In this time of the COVID-19 pandemic, it is important that employers are up to date on the evolving state of affairs. Today, March 14, 2020, the House of Representatives passed the Families First Coronavirus Response Act (“FFCRA”). While the Senate needs to vote on this bill, it is important that employers are aware of what could be coming in the very near future. (NOTE- The analysis and information included in my last blog article is an accurate reflection of the state of affairs as it relates to FMLA today (March 14, 2020). However, with endorsement from both parties and the President, the Bill explained below will most likely pass through the Senate in one form or another some time next week. This article is meant to get employers comfortable with what might be coming.

This proposed legislation addresses many topics including: (1) paid sick leave, (2) free COVID_19 testing, (3) food assistance, (4) unemployment benefits and (5) employer standards for providing protection to employees. This article will just focus on proposed changes to the Family Medical Leave Act (“FMLA”).

FFCRA Proposes Amendment to FMLA to include “Emergency Family and Medical Leave Expansion Act”

As explained in my last article, the Section 102(a)(1) of the FMLA explains that eligible employees are entitled to protected leave for 5 reasons, none of which involve a pandemic.

The Proposed Bill adds Section 110 to the FMLA and would allow eligible employee to take leave, “because of a qualifying need related to a public health emergency.” (Sec. 102(2)(A)(F)). The proposed amendment would be in effect until December 31, 2020. Section 110(a)(2)(A) of the proposed amendment defines Qualifying Need Related to a Public Health Emergency to mean:

"[T]hat a public health emergency has been declared in a location that includes the employee’s work (including the commuting route of the employee), residence, or community, and the employee has a need for leave for one of the following:

(i) To comply with a recommendation or order by a health authority having jurisdiction or a health care provider on the basis that—

(I) the physical presence of the employee on the job would jeopardize the health of others because of—

(aa) the exposure of the employee to coronavirus

(bb) exhibition of symptoms of coronavirus by the employee; and

(II) the employee is unable to both perform the functions of the position of such employee and comply with such recommendation or order.

(ii) To care for a family member of an eligible employee with respect to whom a health authority having jurisdiction or a health care provider makes a determination that the presence of the family member in the community would jeopardize the health of other individuals in the community because of—

(I) the exposure of such family member to coronavirus; or

(II) exhibition of symptoms of coronavirus by such family member.

(iii) To care for the son or daughter under 18 years of age of such employee if the 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.

Public Health Emergency Leave (PHEL) is Available When there is a Public Health Emergency

PHEL would be available only during a Public Health Emergency, and for the two years following the enactment of the Emergency Paid Leave Act. The Bill defines a Public Health Emergency as “an emergency with respect to coronavirus declared by a Federal, State, or local authority.” On March 13, 2020, the White House declared a National State of Emergency Concerning the Novel Coronavirus Disease (COVID-19), making the PHEL available to eligible employees.

Proposed Amendment States that Employee Need Only Be Employed for 30 Days for Eligibility of Public Health Emergency Leave

Proposed Section 110 to the FMLA explains that any employee taking PHEL, is eligible to take such leave so long as that employee has been employed for at least 30 days by the employer. This certainly is different from the standard FMLA requirement that an employee is eligible only if they have been employed for 12 months, and has worked at least 1,250 hours in the preceding 12 months.

Proposed Amendment Lowers the Employer Threshold

As we are all aware, FMLA applies to employers with 50 or more employees. However, FFCRA proposes that all employers with “fewer than 500 employees” are required to provide the the protected leave, under the FMLEA. It follows that if this passes, all employers will be required to provide the Public Health Emergency Leave for employees who have been employed at the company for at least 30 days. Again, this is a difference from the usual FMLA requirement that the FMLA only applies to employers with 50 or more employees.

However, the FMLEA allows for the Secretary of Labor to “exempt small businesses with fewer than 50 employees from the requirements of the Act, when the imposition of such requirements would jeopardize the viability of the business as a going concern.” (Sec. 110(a)(3)(B)).

PHEL Leave Amendment Does Not Allow Intermittent Leave

The Bill explicitly states that the PHEL leave cannot be taken on an intermittent schedule. However, the proposed amendment would allow for intermittent leave as it relates to Section 110(a)(2)(A)(iii), which involves caring for a son or daughter when their school or child care provider has been closed due to a public health emergency.

So, if this Bill is passed, then employees would be able to take intermittent FMLA leave in order to care for their children if their school or daycare has been closed due to COVID-19. However, it should be noted that an employee may also take regular FMLA leave for in order to care for their children if their school or daycare has been closed due to COVID-19.

Relationship to Paid Leave

Section 110(b)(1) of the Bill explains that the first 14 days of the leave may be unpaid leave. However, the employee may elect to substitute any accrued vacation, personal or medical/sick leave for their PHEL, in accordance with §2612(2)(b) of the FMLA. Remember, that substitution means that the accrued vacation, personal or medical/sick leave runs concurrently with the FMLA leave. Interestingly, unlike standard FMLA, the proposed Bill specifically prohibits employers from requiring employees from taking their accrued leave concurrently with the FMLA leave. So, while employees can opt to take their accrued vacation leave concurrently with FMLA leave, employer cannot require that they substitute their leave.

Paid Leave for Days Subsequent to the First 14

The FMLEA provides that an employer shall provide paid leave when an employee takes PHEL for 14 days after the initial 14 day period. Such pay would be 2/3 of the employees regular rate of pay. The Bill provides specifics as to how to calculate the rate of pay.

Restoration to Employment

As you 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 FMLEA; however, Section 110(d)(1) explains that the right to restoration shall not apply to employers who employ fewer than 25 employees if the following conditions are met:

  • The employee takes PHEL;

  • 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 proposed 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 the proposed Section 110(f), the Employer would only need to make these reasonable efforts for a period of 1 year after either the date the employee’s PHEL concludes, or 1 year after the date the date that is 12 weeks after the employee’s PHEL commences- whichever is sooner.

STAY CURRENT

During this time, it is imperative that employer stay current on federal, state and local laws that might affect their business. Employers should contact counsel with any questions or concerns. It is imperative that companies take the appropriate steps now to ensure the health of their employees, and also limit their exposure to liability.

Susie Cirilli