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Family and Medical Leave Act & Family and Medical Leave Expansion Act

Last Updated: 4.24.2020 @ 11:10 am

DISCLAIMER: The following information is a guide, not intended to be used as legal advice, and no attorney client relationship is established by any communication through this website.  Because every situation and every workplace is different we ask that you contact us with specific questions. 

Family and Medical Leave Act of 1993 (FMLA)

Employees who are sick with COVID-19 may qualify for job-protected leave under the Family and Medical Leave Act (FMLA). If an employee is sick for at least 3 consecutive days and has seen a doctor and otherwise meets FMLA eligibility requirements, employers should be aware that the rules and regulations of this law would apply. Employers should remember that FMLA also applies for caregivers of individuals who are sick with COVID-19.

Emergency Family and Medical Leave Expansion Act

What: The Emergency Family and Medical Leave Expansion Act is a temporary amendment to the Family and Medical Leave Act of 1993 (FMLA). The FMLA requires covered employers to provide eligible employees up to 12 weeks of unpaid leave for qualifying reasons. The bill, which is set to become effective April 1, 2020, ends on December 31, 2020.

Covered employer:

  • All employers with fewer than 500 employees and government employers for each working day for 20 or more calendar workweeks in the current or preceding calendar year.
    • DOL guidance confirmed it will be using the integrated employer test under the Family and Medical Leave Act of 1993 to determine whether two or more entities is a single employer for purposes of calculating employees under the 500-employee threshold. The Integrated Employer test under the FMLA considers:
      • Common management,
      • Interrelation between operations,
      • Centralized control,
      • Degree of common ownership/financial control.
        • 29 CFR 825.104(a)(2)
  • An employer, including a religious or nonprofit organization, with fewer than 50 employees, is exempt from providing expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
    • The provision of expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
    • The absence of the employee or employees requesting expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
    • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
    • DOL indicates that school closures/child care reasons for FFCRA leave are the ONLY reasons for which this exemption is available if one of the above criteria are met.

Eligible Employee: Full-time or Part-time employees that have been employed for at least 30- calendar days.

Reasons for FMLA Leave: Circumstances where an employee is unable to work or telework due to the need to care for a minor child if the child’s school or place of child care has been closed or the child care provider is unavailable, due to a public health emergency.

  • Definitions:
    • School: Elementary school or secondary school defined by Elementary and Secondary Education Act
    • Child care provider: A provider who receives compensation for providing childcare services on a regular basis.
    • Public health emergency: Emergency with respect to COVID-19 declared by a Federal, State, or Local Authority.

Pay during Leave:

  • The first 10-days of leave may be unpaid.
  • While employees may elect to substitute any accrued vacation, personal, medical or sick leave during such time, the employer may not require the employee to use the paid leave benefits.
  • After the 14-days, employers must pay employees on leave no less than two-thirds of the employee’s usual pay.
    • when an employee is on Extended FMLA you can agree to pay 100% of the employees pay even though only 2/3 is required.  Employee gets 2/3 under EFMLA and then you voluntarily pay the remaining 1/3.
  • Paid leave is limited to $200 per day and $10,000 in total.

Job Restoration:Employees are not protected from employment actions for legitimate business reasons, such as layoffs or a worksite closure, that would have affected the employee regardless of whether they took leave under the FFCRA. Employers must be able to demonstrate that the employment action would have occurred even if the employee had not taken leave.

Employers may also refuse to return employees to work in the same position if they are a highly compensated “key” employee as defined under the FMLA, or if the employer has fewer than 25 employees, and an employee took leave to care for a son or daughter whose school or place of care was closed, or whose child care provider was unavailable, and all four of the following hardship conditions exist:

  • The position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of leave;
  • employer made reasonable efforts to restore the employee to the same or an equivalent position;
  • employer makes reasonable efforts to contact employee if an equivalent position becomes available; and
  • employer continues to make reasonable efforts to contact employee for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after the employee leave began, whichever is earlier.

Exclusions: Employers with less than 50 employees in a 75-mile radius are immune from civil FMLA damages in an FMLA lawsuit.

  • Appears the DOL can still bring suit.
    Employers may exclude employees who are health care providers or emergency responders from this emergency FMLA entitlement.
  • “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or Any other person determined by the Secretary to be capable of providing health care services.”
  • Case-by-case assessment of an individual’s service and job function. (Nurse v. biller)

Health Care Providers and Emergency Responders are excluded from protection under the EFMLEA

  •  health care provider is anyone employed at:
    • any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
    • This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities’ institutions to provide services or to maintain the operation of the facility.This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.
    • This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
      • To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.
  • an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19.
    • This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.
    • This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
      • To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

 

Effective Date: The FFCRA’s paid leave provisions are effective on April 1, 2020, and applies to leave taken between April 1, 2020, and December 31, 2020.

Non-enforcement Period: The Department of Labor (DOL) released additional guidance on the Families First Coronavirus Response Act (FFCRA), including “Field Assistance Bulletin No. 2020-1: Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act” and model Notices of Employee Rights Under The Paid Sick Leave and Expanded Family and Medical Leave under the FFCRA

The DOL has announced it will not sue employers for violation of the FFCRA through April 17, 2020, provided that the employer has made “reasonable, good faith efforts to comply with the Act.” An employer acts “reasonably” and “in good faith” when:

  1. the employer remedies any violations, including by making all affected employees whole as soon as practicable. 
  2. The violations of the Act were not “willful.”  (i.e. whether the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”)
  3. The Department receives a written commitment from the employer to comply with the FFCRA in the future.

 The department will retain its right to exercise its enforcement  and make the violated parties whole if an employer willfully violate the act, fails to provide written commitment to comply with the FFCRA in the future, or fails to remedy the violation.

Employee Notice: The FFCRA also requires employers post a workplace poster notifying employees of their rights under the FFCRA in a conspicuous place on the employer’s premises. But what about employees who are working from home? The Department of Labor has made clear employers can meet this requirement by emailing or direct mailing the poster to those employees or posting it on an employee information internal or external website. In a FAQ, the DOL explained employer are not obligated to share the notice with laid-off workers or new applicants, but it must do so for new hires.

 

FAQs

Q: Does the FMLA+ require an additional 12 weeks on top of the 12 weeks already available under FMLA?
A: No

Q: Under the EFMLEA exemption, what constitutes as “jeopardizes the viability of business”?
A: The DOL stated that it will be providing additional regulations about the small business exemption. In the meantime, however, employers who employ less than 50 employees and believe that such leave will jeopardize the viability of their business, should gather documentation to demonstrate such. However, such documentation does not need to be sent to the DOL.

Q: If companies are not paying employee taxes (fed, ss, mc) as part of the credit, how will that be recognized when they file their taxes next year?
A: As to your question regarding the tax credit, if you are not required to withhold payroll taxes because of an exemption it appears that employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. The details of this new, expedited procedure will be announced next week.

Q: Will the EFMLEA and Emergency Paid Sick Leave be retroactive if the individual was negatively affected prior to April 2nd?
A: No. The DOL has announced the paid sick leave and expanded FMLA leave requirements will not be retroactive. Accordingly, any paid leave provided before April 1, 2020 will not count towards the employer’s requirement under the new law and the employer will not be eligible for the tax credits.

Q: Does this (EFMLEA and Emergency Paid Sick Leave Act) apply if the employee is currently laid off due to COVID-19?
A: No.

Q: How do we count the 500 employees?
A: DOL guidance confirmed it will be using the integrated employer test under the Family and Medical Leave Act of 1993 to determine whether two or more entities is a single employer for purposes of calculating employees under the 500-employee threshold.  The Integrated Employer test under the FMLA considers:

  • common management,
  • interrelation between operations,
  • centralized control,
  • degree of common ownership/financial control.
    • 29 CFR 825.104(a)(2).

Q: Is there overlap between Paid Sick Leave and FMLA Expansion?
A: If an employee takes paid sick leave and expanded FMLA leave to care for a minor child whose school or childcare is unavailable due to COVID-19, the employee may only receive a total of twelve weeks of paid leave.

“The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.”

Q: Does EMFLEA apply to healthcare employers?
A: Both the FMLA expansion and the Emergency Paid Sick Leave Act indicate that health care providers and first responders may be exempted from the leave requirements. Both laws provide an employer may elect to exclude a health care provider or emergency responder from the act.

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at:

  • any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
  • This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities’ institutions to provide services or to maintain the operation of the facility.
  • This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.
  • This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
    • To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.

For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19.

  • This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.
  • This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
    • To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

Q: What records do I need to keep when my employee takes expanded family and medical leave?
A: Regardless of whether you grant or deny a request for expanded family and medical leave, you must document the following:

  • The name of your employee requesting leave;
  • The date(s) for which leave is requested;
  • The reason for leave; and
  • A statement from the employee that he or she is unable to work because of the reason.

If your employee requests leave because he or she is subject to a quarantine or isolation order or to care for an individual subject to such an order, you should additionally document the name of the government entity that issued the order. If your employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, you should additionally document the name of the health care provider who gave advice.

If your employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, you may must also document:

  • The name of the child being cared for;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement from the employee that no other suitable person is available to care for the child.

Private sector employers that provide expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits. If you intend to claim a tax credit under the FFCRA for your payment of the expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

Q: Can an employee take expanded family and medical leave intermittently while their child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if they are not teleworking?
A: Yes, but only with the employer’s permission. Intermittent expanded family and medical leave should be permitted only when the employee and employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.

The Department encourages employers and employees to collaborate to achieve flexibility. Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.

Q: If an employer closes the worksite while an employee is on expanded family and medical leave, what happens?
A: If an employer closes while an employee is on expanded family and medical leave, the employer must pay for any expanded family and medical leave used before the employer closed. As of the date the employer closes the worksite, the employee is no longer entitled to expanded family and medical leave, but may be eligible for unemployment insurance benefits. This is true whether the employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive.

Q: Can an employee use employer’s preexisting leave entitlements and emergency paid sick leave and expanded family and medical leave concurrently for the same hours?
A: During the first two weeks of unpaid expanded family and medical leave, employees may not simultaneously take paid sick leave under the EPSLA and preexisting paid leave, unless the employer agrees to allow them to supplement the amount received from paid sick leave with preexisting paid leave, up to their normal earnings. After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA, however, employees may elect—or be required by the employer—to take the remaining expanded family and medical leave at the same time as any existing paid leave that, under the employer’s policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if the employee is not ill.

If employees are required to take existing leave concurrently with remaining expanded family and medical leave, the employer must pay the full amount to which the employee is entitled under the existing paid leave policy for the period of leave taken. If the employee exhausts preexisting paid leave and is still entitled to additional expanded family and medical leave, the employer must pay at least 2/3 of employee pay for subsequent periods of expanded family and medical leave taken, up to $200 per workday and $10,000 in the aggregate, for expanded family and medical leave.

Q: If I am an employer, may I require my employee to take paid leave he or she may have under my existing paid leave policy concurrently with expanded family and medical leave under the EFMLEA?
A: Yes. After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA, you may require that your employee take concurrently for the same hours expanded family and medical leave and existing leave that, under your policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if your employee (or a covered family member) is not ill.

If you do so, you must pay your employee the full amount to which he or she is entitled under your existing paid leave policy for the period of leave taken. You must pay your employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per workday and $10,000 in the aggregate, for expanded family and medical leave. If your employee exhausts all preexisting paid vacation, personal, medical, or sick leave, you would need to pay your employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per day and $10,000 in the aggregate. You are free to amend your own policies to the extent consistent with applicable law.

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