Coronavirus Legislation May Impact FMLA and Paid Leave

March 18, 2020 | Insights



By Gary Fowler

Employers confronting the Coronavirus/COVID-19 crisis should stay alert as to current developments in Congress.

For employers, key parts of the bill are those concerning expansion of the Family and Medical Leave Act (FMLA) and the provision for paid leave. The Emergency Family and Medical Leave Expansion Act is Division C of the FFCRA, and the Emergency Paid Sick Leave Act is Division E. Other aspects of the FFCRA, including those concerning partial tax credits for the paid leave, can be found here.

The Emergency Family and Medical Expansion Act

The bill creates the Emergency Family and Medical Leave Expansion Act (EFMLEA). As originally enacted, FMLA provides unpaid leave up to 12 weeks per year to eligible employees because of the birth of a son or daughter of the employee and in order to care for such son or daughter; because of the placement of a son or daughter with the employee for adoption or foster care; in order to care for the spouse, child, or parent of the employee for a serious health condition; and because of the employee’s serious health condition that makes the employee unable to perform the functions of the position of such employee. In 2008, Congress added a fifth qualifying event relating to family members of service members. This article will refer to these existing types of FMLA leave as “traditional FMLA leaves.”

“Qualifying Need Related to a Public Health Emergency.” The EFMLEA adds a sixth category to the list of traditional FMLA leaves: “a qualifying need related to a public health emergency.” This sixth category—as currently proposed—would take effect 15 days after the date Congress enacts the bill and would extend only to December 31, 2020. A “public health emergency” means an emergency with respect to COVID-19 declared by a federal, state, or local authority.

This sixth category of EFMLEA leave – “qualifying need related to a public health emergency” – means that the employee is unable to “work (or telework) due to a need for leave 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.” Notably, the House narrowed the qualifying needs from what was originally passed by the House on Friday night/Saturday morning, March 13-14. Before the “technical corrections,” the bill would have also provided EFMLEA leave for persons with COVID-19, those who had been quarantined, or those who cared for such individuals. The latest House version deletes these other categories from the list of qualifying needs and leaves only the child care needs. Existing FMLA protections, however, may extend to a person diagnosed with COVID-19 or who requires leave to care for an immediate family member with the disease.

Paid Leave Under EFMLEA. A key difference from traditional FMLA leaves is that EFMLEA leave related to a qualifying need for a public health emergency is paid leave after the first ten days for which the employee takes leave. (That 10-day period would be covered by the Emergency Paid Leave Act discussed below.) An employee may use pre-existing paid time off during this period for EFMLEA leave. After the first ten days, the employee receives two-thirds of the employee’s regular pay for the remaining period of EFMLEA leave. The bill provides formulas for employers to determine the amount of paid leave for hourly employees whose schedules vary from week to week. The latest version by the House caps the amount of payment to the employee of no more than $200 per day and $10,000 in the aggregate. Other parts of the Act provide for tax credits to the employer’s payroll tax that mitigate part of the cost of providing such leave.

Who Is a Covered Employer for Purposes of EFMLEA. Another key difference is the definition of a covered employer. EFMLEA leave for a qualifying need for a public health emergency applies to employers with fewer than 500 employees; traditional FMLA leave applies only to employers with 50 or more employees. The Secretary of Labor has the authority to issue regulations for good cause to exclude certain health care providers and emergency responders from the definition of eligible employees and to exempt small businesses with less than 50 employees “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” Under the latest version of the House bill, an employer of an employee who is a healthcare provider or an emergency responder may elect to exclude such employee from EFMLAE leave.

Eligible Employees. Under existing FMLA law that remains applicable to traditional FMLA leaves, an eligible employee is generally an employee with at least one year of service and 1,250 hours of service. Existing FMLA leave is also restricted to those employees who work at worksites with 50 or more employees within a 75-mile radius. For EFMLEA leave, an eligible employee means an employee who has been employed for at least 30 calendar days by the employer with respect to whom the leave is requested. As the bill currently stands, there is no “location” requirement for EFMLEA leave.

Certification and Notification Requirements. While not entirely clear, the healthcare provider certification requirements for a serious health condition under FMLA do not appear to apply to EFMLEA leave, but the bill provides that an “employee shall provide the employer with such notice of leave as is practicable.”

Restoration Rights. Restoration rights under existing FMLA (29 U.S.C § 2014) apply to EFMLEA leave except that an employer with fewer than 25 employees may be excused when certain conditions as to job unavailability are met, the employer makes reasonable efforts to restore the employee to an equivalent position, and the employer notifies the employee of any equivalent position that become available during a one-year period.

Particular provisions apply to employment under multi-employer bargaining agreements.

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act, which is Division E of the Families First Coronavirus Response Act, requires employers with fewer than 500 employees to provide up to 80 hours (for full-time employees; part-time employees determined by formula) of paid leave for due to a need for leave because:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
  6. The employee is 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.

The bill allows the employer of an employee who is a health care provider or an emergency responder to exclude such employee from leave. Like EFMLEA, the Secretary of Labor may, for good cause, exclude or allow healthcare providers and emergency responders to opt out and to exempt small business with fewer than 50 employees from the child care qualifying event (qualifying event (5)) when the imposition of such a requirement would jeopardize the viability of the business as a going concern. Otherwise, any current employee is immediately eligible for paid leave for the qualifying events under the Emergency Paid Sick Leave Act.

The bill, as revised by the House, caps the required paid sick time at $511 per day and $5110 in the aggregate for qualifying needs due to the employee’s own condition (i.e., qualifying needs (1), (2), and (3) listed above) and otherwise at $200 per day and $2000 in the aggregate (i.e., qualifying needs (4) and (5) for caring for others and qualifying need (6)). Paid leave for caring for others and qualifying need (6) is also at two-thirds of the employee’s regular compensation, up to the amount of the applicable cap.

The bill also provides that the Secretary of Labor will provide a model notice for employers to provide to employees within seven days of enactment. An employer may not require an employee to search for or find a replacement employee to cover the employee’s shift as a condition of using such paid sick time. The bill also prohibits retaliation against employees. Like the EFMLEA, the Act takes effect 15 days after enactment and sunsets on December 31, 2020.

Please keep in mind that this is only a summary of the current version passed by the House.  We will keep you timely apprised of further developments.

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Gary FowlerMeet Gary

W. Gary Fowler advises and defends his clients on labor and employment matters, with particular interest in executive compensation and contracts, covenants not to compete, and disability law. Gary is recognized for his experience in the Americans with Disabilities Act and for his knowledge of covenants not to compete, which are particularly complex under Texas law. A Co-Chair of Jackson Walker’s Labor & Employment group, Gary is Board Certified in Labor and Employment Law and frequently speaks on non-competition issues and employment law. Since 2006, The Best Lawyers in America has recognized Gary for his work in Labor and Employment Law – Management and, in 2017, named him Lawyer of the Year for Dallas in that category.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.