Yesterday, we provided a response to frequently asked questions about the Emergency Paid Sick Leave Act (“EPSLA”). Today, we are providing answers to questions that we have been asked about the Emergency Family Medical Leave Expansion Act (“EFMLEA”).
Q: Who is entitled to leave under the EFMLA?
Answer: The EFMLA pertains only to those employees who have a “qualifying need related to a public health emergency.” This need pertains only to those employees who cannot work or telework because of the need to care for a son or daughter under 18 years of age whose school, place of care or childcare provider cannot care for the child due to a public health emergency. The EFMLEA does not change any other FMLA terms.
Q: How much leave is a qualifying employee entitled to receive?
Answer: A qualified employee is entitled to 12 weeks of leave.
Q: Is paid leave required under the EFMLA?
Answer: Yes. The Act states that the first 2 weeks of leave are unpaid; however, compensation may be due under the EPSLA if the employee qualifies. EPSLA leave for the care of someone other than the employee is paid at two-thirds the employee's regular rate of pay. The last 10 weeks of this leave are also compensated at two-thirds the employee’s regular rate of pay as defined by the Fair Labor Standards Act (“FLSA”)(29 U.S.C. 207(e)).
Q. Who is a “qualifying employee” under the EFMLEA?
Answer: The EFMLEA provides that “eligible employees” are those who have been employed by the employer for 30 days. This does not appear to include any hour requirement such as the normal FMLA 1,250 hour requirement. The Expansion Act applies to all private employers with fewer than 500 employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year and all government employers.
Q: Does this leave apply only to full-time employees?
Answer: No. The removal of the 12-month eligibility requirement along with the lack of a minimum-hours-worked requirement indicates that this leave is available for anyone who has worked for a minimum of 30 days, including full-time and part-time employees.
Q: Are there any exclusions from eligibility under the EFMLEA?
Answer: Yes. The Act contains a “Special Rule for Health Care Providers and Emergency Responders” which states that an employer of an employee who is a health care provider or an emergency responder “may” elect to exclude such employees from the application of the provisions of this Amendment.
Q: Is an employer required to return an employee who takes leave under the EFMLEA to his or her position at the end of the leave?
Answer: That depends. If the employer employs fewer than 25 employees and meets certain conditions, maybe not. If the employee took leave under the EFMLEA and his/her position no longer exists because of economic conditions or other operational changes caused by the public health emergency during the leave, and the employer made reasonable efforts to restore the employee to an equivalent position with equivalent benefits, pay and other terms and conditions of employment, and the efforts fail, and the employer attempts to contact the employee if an equivalent position becomes available in the 1-year period beginning on the earlier of the date on which the qualifying need related to a public health emergency concludes or the date that is 12 weeks after the date on which the employee’s leave under section 102(a)(1)(F) commences and all efforts fail, then restoration is not required.
Q: Is compensation under the EFMLEA capped?
Answer: Yes. Employees can take sick leave under the EPSLA to cover the first 10 days of unpaid leave under the Act, but under the EPSLA that leave is capped at two-thirds the employee’s regular rate of pay. The employee can also substitute accrued paid leave (vacation, personal, medical or sick leave) for full pay for the first 10 days of the leave. After the first 10 days of leave, the remaining 10 weeks of leave are paid at two-thirds of the employee’s regular rate of pay. The total pay for all 12 weeks is capped at $200 per day or $12,000 for all 12 weeks inclusive of both paid sick leave and expanded FMLA.
If you have other questions, please do not hesitate to contact us. Be well and stay healthy.
