The new law also significantly expands FMLA protections related to COVID-19 on a temporary basis. All such changes will take effect on April 2 and last through December 31, 2020. These changes only affect the COVID-19 circumstances; they do not impact your other FMLA policies or practices.

First, far more employers are covered. For the COVID-19 provisions, all employers with less than 500 employees will be covered. (Recall that the FMLA generally only covers those employers with 50 or more employees.)

Second, the only eligibility requirement for employees is that they have worked for the employer for at least 30 days prior to the first day of leave. (Recall that eligibility under the FMLA is typically contingent on the employee working for the employer for a total of 12 months and working at least 1,250 hours during the previous 12-month period.) Both of these changes are important, as they expand emergency benefits to far more employers and far more employees.

Third, and perhaps most significantly, nearly all employees are now eligible to take up to 12 weeks of emergency paid leave to care for their children when schools and daycares are closed (or their regular childcare is otherwise unavailable) because of the COVID-19 pandemic. Only emergency leave taken for this specific purpose must be paid; all other types of leave available under the FMLA remain unpaid. The only caveat is that employers need not pay an employee for the first 10 (work)days of leave under these circumstances, though the employee can elect to use any other type of accrued paid leave during that time (including the paid sick leave discussed in the first part of the ELR).

After the first ten days of emergency FMLA leave, the employer must pay employees at least two-thirds their regular rate for the number of hours they would otherwise be normally scheduled to work, for the duration of such leave. Paid leave is available for both full-time and part-time employees. Employees who work an irregular schedule that varies from week to week are entitled to be paid based on the average number of hours worked for the six months prior to taking leave (or the reasonable expectation of average number of hours when they were hired, if they worked less than six months). In all cases, an employee’s entitlement to paid FMLA leave is capped at $200 per day and $10,000 total.

It is important to note that the new law allows employers of healthcare providers and emergency responders to exclude them from receiving the benefits we’re talking about. In other words, employers can decide that these types of employees are needed at work to combat the COVID-19 pandemic and deny them any of the paid emergency FMLA leave.

Like other FMLA leave, emergency COVID-19 leave is job-protected. For most employers, an employee taking this leave must be restored to his or her previous position (or an equivalent position) upon returning to work. But employers with less than 25 employees are exempted from this requirement if the employee’s position no longer exists following the emergency leave because of an economic downturn or other circumstances caused by the COVID-19 pandemic while the employee was out on leave. Even if it has less than 25 employees, however, an employer must still make reasonable attempts to return the employee to an equivalent position and make efforts to contact the employee if an equivalent position becomes available for up to one year following the employee’s leave.

The emergency act includes language allowing the Department of Labor to issue regulations possibly exempting small businesses with less than 50 employees if the required leave would “jeopardize the viability” of their business. But we have no idea if the DOL will actually decide to issue any such regulations and, if they do, exactly what those regulations might say. So, right now, the emergency act applies to nearly everyone—all employers with less than 500 employees and all employees who have been employed for at least 30 days—which covers a shockingly large portion of the current workforce. Generally speaking, you must assume the emergency FMLA expansion applies to you and act accordingly. We will issue ELR updates if and when that changes.

By Kristen L. Brightmire and Rebecca D. Bullard
kbrightmire@dsda.com and rbullard@dsda.com