We were recently asked about the applicability of certain provisions of the Families First Coronavirus Response Act, specifically, the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act, to units of local government. For reasons discussed further below, we believe that both the FMLA Expansion Act and the Emergency Sick Leave Act apply to local government employers.
First, the FMLA Expansion Act, which applies to childcare related work absences occasioned by school closures or the loss of childcare due to COVID0-19, provides that definitions pertaining to who is an “employer” are taken from the Fair Labor Standards Act (“FLSA”) definitions of the term “employer.” More specifically, at 29 U.S.C. 203(d), the FLSA provides that an “employer” “…includes a public agency…” The FLSA then goes on to define the meaning of the term “public agency” at 29 U.S.C. 203(x) as “…the government of a State or political subdivision thereof.” So, for purposes of the FMLA Expansion Act’s definitions of an “employer”, the term includes a “public agency,” and a “public agency” is a political subdivision of the State which includes, but is not limited to such entities as counties, cities, towns, villages, school districts, water districts, and park districts.
Second, the Emergency Paid Sick Leave Act, in Section 5110(2)(B)(iii), provides that a “covered employer” “includes any ‘public agency’, as defined in section (3)(x) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(x)). We discussed what Section 203(x) says about the meaning of the term “public agency” above, and it is clear that it includes all political subdivisions of the State.
Third, we believe that this confusion may have developed because of language in other parts of the FFCRA excluding government employers from tax credits afforded to private employers for paying for the expanded benefits provided in the Act. Sections 7001(e)(4) and 7003(e)(4) exclude government employers from receiving these tax credits, but they do not excuse government employers from the obligation to provide the expanded benefits.
For all of the reasons discussed in this post, we believe that it was the intent of the United States Congress to require that all local government employers afford their employees all of the protections provided in both the FMLA Expansion Act and the Emergency Paid Sick Leave Act. Please feel free to contact us with any questions. We also encourage our readers to look at our prior blog posts summarizing key provisions of the Families First Coronavirus Response Act. Finally, we are compiling a list of frequently asked questions addressing the application of the FFCRA that will be out on Wednesday.
