The Emergency Family and Medical Leave Expansion Act (Emergency FMLA) expands the FMLA to provide paid, and protected leave to covered employees with a qualifying need related to a public health emergency regarding COVID-19 declared by a federal, state, or local authority. The Emergency FMLA broadens coverage of the FMLA in several key respects. For employers with fewer than 50 employees: - The Secretary of Labor may exempt them from providing public health emergency leave if it would potentially put that business out of work.
- Significantly, there is no private cause of action for damages or attorneys’ fees available against those employers that do not meet the definition of covered employer under the FMLA.
The Emergency FMLA also changes coverage to include employees who have been employed by the employer for at least 30 days. This is a significant change, under the FMLA—before the new emergency law—covered employees employed for at least 12 months by the employer and worked for at least 1,250 hours during the previous 12 months. Leave Use and Payment The Emergency FMLA amends the original FMLA by creating a new category of protected leave for employees with a “qualifying need related to a public health emergency.” A qualifying need can now be determined as the inability of an employee to work or telework due to the need to care for a child under 18 years of age. Under the Emergency FMLA, the first ten days of leave is unpaid. An employee may elect to use accrued paid time off during that time period under the leave provisions of the FMLA. But leave after the first ten days now must be paid at a rate at least two-thirds the employee’s regular rate of pay based on the employee’s regular schedule. Yet, for each employee, paid leave cannot exceed under the Emergency FMLA - $200 per day.
- $10,000 in total.
Another Silver-lining to Employers? Private employers may be able to receive a tax credit for payroll taxes for the Emergency FMLA wages paid to employees, subject to the employee caps on the total paid leave. Importantly, despite the Emergency FMLA adding additional categories of qualifying leave under the FMLA, the total amount of available leave remains the same as under the FMLA (12 weeks in a 12-month period). Again, under the Emergency FMLA, the first two weeks are unpaid, and the remaining ten weeks are paid leave. Employees must provide notice to their employers as soon as practicable when the need for leave is foreseeable. An Employee's Rights to Return to their Jobs After the Emergency FMLA Leave Expires Generally, employees whose FMLA leave expires must be restated to the same or an equivalent position with their employer. The Emergency FMLA, however, contains an exception to the job restoration right for employers with fewer than 25 employees when their employees take public health emergency leave if all the following conditions are met: - The employee’s position no longer exists because of economic conditions affecting the business and caused by a public health emergency.
- The employer takes reasonable actions to return the employee to an equivalent position that he or she had before taking leave.
- If the employer is unable to return the employee to an equivalent position, then the employer must make reasonable efforts to contact the employee about available equivalent positions for one year.
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