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

Last Updated: 3.27.2020 @ 11:50am

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)
  • Small businesses with fewer than 50 employees may be exempt from the bill if such leave would jeopardize the viability of the business.
    • 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.

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.
  • Paid leave is limited to $200 per day and $10,000 in total.

Job Restoration: Employers with fewer than 25 employees are not required to restore an employee’s job if:

  • the employee’s position no longer exists after the leave due to an economic downturn;
  • or other changes in operations affecting employment due to a public health emergency during the leave period.

If the employer is unable to restore the employee to a position equivalent, employer must make reasonable efforts to contact the employee if an equivalent position become available within one year.

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)

Effective Date: The FFCRA’s paid leave provisions are effective on April 1, 2020, (Not April 2, 2020 like we all assumed) 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: 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 emergency 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. Presumably, this means an employer may elect to not allow a doctor, nurse or other provider to take leave under the act but must provide the leave to clerical, custodial and executive employees.

 

DISCLAIMER: This is a guide, not legal advice. Every situation is different and people should contact us with specific questions.

News

  • DOL Releases Additional Guidance on Families First Coronavirus Response ActRead more

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