What the Emergency Family & Medical Leave Expansion Act Means for Your Business

On March 18, 2020, Congress passed and the President signed the Families First Coronavirus Response Act. Among other things, there are two provisions providing paid leave to employees forced to miss work because of the COVID-19 outbreak: the Emergency Family Medical Leave Act, and the Emergency Paid Sick Leave Act.

These new laws go into effect into effect on April 2, 2020, and will remain in place until the end of the year.

Emergency Family and Medical Leave Expansion Act

Expanded Coverage and Eligibility – This Act expands the Family Medical Leave Act (FMLA). Previously, the FMLA covered only employers with 50 or more employees. The new Act covers all employers with fewer than 500 employees. In addition, it lowers an employee’s eligibility to those who have worked for the employer for at least 30 days prior to the designated leave. As a result, employers not previously subject to the FMLA may be required to provide job-protected leave to employees for a public-health emergency.

Although not yet clear as to the qualifications, the Act allows the Secretary of Labor to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business.

Reasons for Emergency Leave – A qualifying employee who is unable to work or telework can now can take up to 12 weeks of job-protected leave to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed, or the childcare provider is unavailable due to a public-health emergency.

Paid Leave – Under the Act, the first 10 days of Emergency FMLA may be unpaid. During this 10-day period, an employee may elect to substitute any accrued paid leave (like vacation or sick leave) to cover some or all of the 10-day unpaid period.

  • Pay for Full-Time Employees. After the 10-day period, the employer generally must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. The Act limits this pay entitlement to $200 per day and $10,000 in the aggregate per employee. 
  • Pay for Part-Time Employees – Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work.

Job Restoration – Employers with 25 or more employees will have the same obligation as under traditional FMLA to return any employee who has taken Emergency FMLA to the same or equivalent position upon the return to work. However, employers with fewer than 25 employees are generally excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downtown or other circumstances caused by a public health emergency during the period of Emergency FMLA. This exclusion is subject to the employer making reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the employee’s leave.

Emergency Paid Sick Leave Act

Reasons for Paid Sick Leave – This new Act allows an eligible employee to take paid sick leave because the employee is:

  1. Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. Advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. Experiencing COVID-19 symptoms and seeking medical diagnosis;
  4. Caring for an individual subject to a federal, state, or local quarantine or isolation order, or advised by a health care provider to self-quarantine due to COVID-19 concerns;
  5. Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
  6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Eligibility – Employers with fewer than 500 employees must provide full-time employees (regardless of the employee’s duration of employment prior to leave) with 80 hours of paid sick leave at the employee’s regular rate (or two-thirds the employee’s regular rate to care for qualifying reasons 4, 5, or 6 listed above).

  • Cap on Paid Sick Leave Wages – Sick leave wages are limited to $511 per day up to $5,110 total per employee for their own use and to $200 per day up to $2,000 total to care for others and any other substantially similar condition.
  • Carryover and Interaction with Other Paid Leave – Paid sick leave does not carry over to the following year and may be in addition to any paid sick leave currently provided by employers.
  • Calculating Rate of Pay – Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking paid sick leave. Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work over a two-week period. A business employing fewer than 500 employees is required, at the request of the employee, to pay a full-time employee for 80 hours of mandated emergency paid sick leave instead of the initial 10 days of unpaid leave permitted by the Emergency Family and Medical Leave Expansion Act (summarized above).

These new federal statutes are intended to help workers affected by COVID-19. In doing so, however, they will have large impacts on business owners. Contact us today so we can discuss with you how these changes will affect your business.

Richard Lofgren
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Richard Lofgren
Richard Lofgren
Richard Lofgren has twenty eight years of legal experience working with businesses on the issues they face daily during their business cycles. Acting in the capacity of an outside general counsel, he helps business owners to make smarter decisions, build stronger relationships and make and save money.