Emergency Family and Medical Leave Expansion Act in Response to COVID-19
The Emergency Family and Medical Leave Expansion Act (“Act”) is part of the Families First Coronavirus Response Act signed into law on March 18, 2020. This Act provides separate benefits from the Emergency Paid Sick Leave Act that was signed into law on the same day. The Act addresses the issue of family and medical leave due to the Coronavirus Pandemic. The Act goes into effect no later than 15 days (April 2, 2020) after it was signed by the President, and will expire on December 31, 2020. The Act applies to all employers with less than 500 employees. However, the Secretary of Labor has the authority to issue regulations to exclude certain health care providers and emergency responders. The Secretary may also exempt small businesses with fewer than 50 employees if the provisions of the Act it would jeopardize the viability of the business as a going concern. Additionally, employers of health care providers or emergency responders may elect to exclude their employees from the Act.
An employee is eligible for emergency family and medical leave if the employee:
1) has been employed by the employer for at least 30 calendar days prior to the request for leave; and
2) the employee that is unable to work or telework due to a need for leave to care for the son or daughter under 18 years of age 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 with respect to coronavirus declared by a Federal, state, or local authority.
In a case where an employee determines that paid leave will be necessary, the employee must provide the employer with such notice of leave as is practicable. An eligible employee is entitled to 12 weeks of leave. The first 10 days of leave may be unpaid. An employee may choose to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first 10 days of unpaid leave. During the remaining leave the employer is required to pay the employee an amount equal to at least two-thirds of the employee’s regular rate of pay based on the number of hours the employee would otherwise have been normally scheduled to work. The Act contains special calculation formulas to determine the amount of paid leave for employees that work varying schedules. However, the paid leave is capped at $200 per day, even if two-thirds of the employee’s regular pay would be more than $200 per day. Similarly, the total the employer is required to pay during the employee’s paid leave is capped at $10,000.
The employee on leave must be restored to his or her position when the leave ends. However, the Act creates an exception for employers with less than 25 employees. Employers with less than 25 employees are not required to restore the employee to his or her position if (A) the employee takes leave under the Act; (B) the position held by the employee when the leave commenced no longer exists due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by the coronavirus pandemic; (C) and the employer makes reasonable efforts to restore the employee to an equivalent position the employee held when the leave commenced with equivalent benefits, pay, and other terms of conditions and employment; and (D) if reasonable efforts to restore the employee fail under section (C) the employee makes reasonable efforts during a prescribed notice period to contact the employee if an equivalent position later becomes available. The contact period in (D) is a 1-year period commencing on the earlier of: (1) the date on which the qualifying need for leave concludes, or (2) the date that is 12 weeks after the date on which the employee’s leave commences.
An employer shall not be subject to civil damages in a civil action by an employee for violation of the Act if the employer has less than 50 employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
Employers that are party to a multiemployer collective bargaining agreement may fulfill their obligations under this Act by making contributions to a multiemployer fund, plan or program, and the fund, plan or program allows its employees to secure paid leave from the fund, plan or program. Employees subject to a multiemployer collective bargaining agreement may secure paid leave from the fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement for paid leave.
Please contact the attorneys at Bruning & Associates, P.C. at 815-455-3000 if you have any questions regarding the Act and how it applies to you.
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