Background

The Emergency Family and Medical Leave Expansion Act (“EFMLA”) was passed on March 18, 2020 and amends the Family and Medical Leave Act of 1993. The EFMLA takes effect no later than April 2, 2020. The EFMLA is part of the Families First Coronavirus Response Act. A copy of the full text and history of the Act can be found online at Families First Coronavirus Response Act.

The EFMLA applies to any employer who has fewer than 500 employees and any employee who was employed for at least 30 days prior to submitting a request for leave.

Summary

The EFMLA provides broadened coverage under Family and Medical Leave Act for situations related to coronavirus by loosening the eligibility requirements. The law becomes effective April 2, 2020 (15 days after the President signed it into law) and will remain in place until December 31, 2020.  The Department of Labor is expected to publish implementing regulations in the following weeks. RTS will continue to monitor the guidance and bring you the most up to date information.

How this impacts your day to day operation and your business:

1. Who is an “Eligible Employee”?

Employees are eligible for relief under the EFMLA after working for the employer for at least 30 calendar days.

2. Does the EFMLA affect my business?

The EFMLA applies to businesses with fewer than 500 employees.  The Department of Labor has ability to exempt small business with fewer than 50 employees if compliance with the EFLMA would jeopardize the viability of the small business. The exemption procedure has yet to be announced. 

3. Who qualifies for leave under the EFLMA?   

Leave is available when an employee is unable to work or telework due to the need to care for a son or daughter under the age of 18 or when the child’s school or daycare is closed due to the coronavirus or the child care provider of such son or daughter is unavailable, due to a public health emergency.

If you have implemented procedures to allow employees to telework they may not be eligible for leave under EFLMA.  It is important to remember that there is no relaxation of the wage and hour rules for hourly people who perform telework at their homes. This includes logging hours worked and payment of overtime as applicable.

If you have questions about salaried employees please contact our office directly as this is a highly technical area.

4. Is leave under the EFMLA paid or unpaid?

The initial 10 days of EFMLA leave is unpaid. After 10 days, the remainder of the leave is paid. The employee can elect to run his or her existing paid leave (like vacation days or PTO) concurrently with the 10-day unpaid leave period, but the employer cannot require this.

If an employee qualifies for both EFMLA and Emergency Paid Sick Leave, the employee may use the Emergency Paid Sick Leave at the same time as the first 10 days of EFMLA leave that would normally be unpaid.

After the 10-day unpaid leave period expires, the employee will be paid two-thirds of his or her regular rate under the Fair Labor Standards Act, multiplied by the number of hours the employee would normally work. If this is unpredictable, the employer should look at the prior six-month period to determine the average number of hours worked per week prior to the leave.  If any employee has not been employed for 6 months, an employer should use the number of hours a day that the employee was reasonably expected to work at the time of hiring.

Wages to Be Paid = Amount Not Less Than 2/3 Of Employee’s Regular Pay Rate X the Number of Hours the Employee Would Normally Be Scheduled to Work.

5. Are there limits on the amount of paid leave available?

Paid leave under the EFMLA will be a maximum of $200 per day and $10,000 in total for the duration of the leave. After the $10,000 maximum is reached, the remainder of the leave, up to 12 weeks, is unpaid.

6. When can employees start to use leave under EFMLA?

Employees can elect to take leave under EFMLA starting April 2, 2020.

7. What notice or documentation is required to apply for leave under EFMLA?

The EFMLA requires an employee to provide notice of leave as soon as practicable.  The legislation is silent on required documentation.  It is recommended that the employee provide a written statement about the reason for leave and for whom they are caring for during the period of leave until further guidance is provided.

8. Is an employee who takes leave under the EFMLA entitled to be rehired?

In the event that an employee takes leave under the Act and then notifies the employer they are ready to return to work, an employer is required to restore the employee back to their prior position.

An exception exists for those employers who have 25 or fewer employees and whose business was modified by the public health emergency. In the event that the employee’s position no longer exists due to economic conditions or other changes in operating conditions of the employer: (i) that affect employment; and (ii) are caused by a public health emergency during the period of leave then the employee may not be entitled to be rehired. But the employer must still make a reasonable effort to restore the employee.

If the employer is unable to restore the employee back to their prior position or give them an equivalent position, the employer is then required to contact the employee if an equivalent position becomes available within a year after the expiration: (i) of the public health emergency; or (ii)  after the 3 month anniversary of employee’s leave request, whichever is earlier.

The above information does not take the place of legal advice. Please contact the attorneys at Reiling Teder & Schrier, LLC if you have questions about a particular situation.