EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT of 2020
The Emergency Family and Medical Leave Expansion Act (EFMLEA)[1], as signed into law by the President on March 18, 2020, expands employer responsibility for providing paid leave to employees. The act amends the federal FMLEA to require employers with fewer than 500 employees to provide relief to certain qualified employees during a public health emergency.
Please note that employees may also be eligible for paid sick leave under the Emergency Paid Sick Leave Act (also signed into law on March 18, 2020). The requirements of the Emergency Paid Sick Leave Act are not discussed in the summary of the EFMLEA below.
Q&A
WHAT TIME PERIODS DOES THE EFMLEA COVER?
The EFMLEA applies to paid leave for qualified employees taken from April 1, 2020 to December 31, 2020.
WHICH EMPLOYER CLASSES DOES THE ACT COVER?
The EFMLEA covers all employers which employ fewer than 500 employees.
WHICH EMPLOYEES QUALIFY FOR PAID LEAVE UNDER THE EFMLEA?
Paid leave applies to employees who:
Have been employed at least 30 calendar days by the employer,
Relating to rehired employees: this includes an employee who was laid off by that employer before March 1, 2020, had worked for the employer for at least 30 days out of the last 60 calendar days prior to the employee’s layoff, and was rehired by the employer;
Unable to work (or telework) due to need for leave to care for sons or daughters under 18 years of age if school or place of care has been closed or child care provider is unavailable, due to a public health emergency (a emergency with respect to Covid-19 declared by Federal, State, or local authorities).
CAN EMPLOYERS EXCLUDE EMPLOYEES FROM EFMLEA?
Employers of health care providers and emergency responders can exclude those employees from taking leave under this EFMLEA. 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.
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.
HOW MANY DAYS OF PAID LEAVE ARE EMPLOYEES ENTITLED TO?
Qualified employees are entitled to a total of 12 workweeks of leave:
The first 10 days of the leave period are unpaid leave;
Employee may elect to substitute accrued paid vacation leave, personal leave or medical sick leave for the first unpaid 10 days of leave,
Paid subsequent days:
Employer shall provide paid leave for each day of leave after the initial 10 days.
HOW IS THE PAID LEAVE UNDER THE EFMLEA CALCULATED?
Calculation of pay must be based on:
Two-thirds of an employee’s regular rate of pay (determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)); and,
Number of hours the employee would otherwise be normally scheduled to work
Other calculation methods may apply for varying schedule hour calculations
Such paid leave shall not exceed $200 per day and $10,000 in the aggregate.
ARE EMPLOYEES REQUIRED TO PROVIDE NOTICE OF LEAVE?
Yes, if such leave is foreseeable and practicable.
ARE EMPLOYERS REQUIRED TO RESTORE EMPLOYEES TO THE POSITIONS THEY LEFT PRIOR TO TAKING EFMLEA LEAVE?
Employers with more than 25 employees are required to restore employees to their previous positions prior to taking a leave with some exceptions pursuant to Section 2614 of FMLEA.
Employers with fewer than 25 employees are exempted from restoring employees to their position after a paid leave, if the following conditions are met:
Employee took leave under EFMLEA;
The employee’s position no longer exists due to economic conditions or other changes in operating conditions of the employer,
That affect employment; and,
are caused by a public health emergency during the period of leave;
Employer makes reasonable effort to restore the employee to a position equivalent to the position the employee held before the leave, with equivalent pay and benefits; and
If employer fails to restore the employee to the employee’s position after a reasonable effort, for the next year, the employer must contact and offer the employee the position when an equivalent position is available.
[1] Division C of the Family First Coronavirus Response Act
