Emergency Family and Medical Leave Expansion Act

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As discussed in the previous section, within the FFCRA are provisions for emergency family leave. They are known as the Emergency Family Medical Expansion Leave Act.

COVERED EMPLOYERS

• private sector employers with fewer than 500 employees
• public sector employers with at least one employee

QUALIFYING REASONS TO TAKE EMERGENCY FAMILY AND MEDICAL EXPANSION LEAVE

Under the EFMLEA:

• Employees may use leave only to care for their child whose school or place of care is closed (or whose child care provider is unavailable) due to COVID-19 precautions.
• Employees may have as many as 12 work weeks of job-protected leave, with continued health insurance coverage.
• The initial two weeks are unpaid.
• The remaining 10 weeks are paid at two-thirds the employee’s regular rate of pay.

All employees, including full-time and part-time employees of covered employers are eligible for emergency family and medical leave if they have been employed for at least 30 calendar days.

This is in contrast to the Family Medical Leave Act (FMLA), which requires an employee be employed for one year and have worked at least 1,250 hours to qualify for leave.

An employee may take leave under the EFMLEA for only one reason –– to care for his or her child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

PAID AND UNPAID LEAVE PERIODS UNDER THE EMERGENCY FAMILY MEDICAL LEAVE EXPANSION ACT

The initial two weeks of emergency family leave are unpaid, but the employee may choose to use paid sick leave under emergency sick leave or accrued paid time off simultaneously with the unpaid leave.

As many as 10 weeks of paid leave are available to eligible employees. The leave is paid at two-thirds the employee’s regular rate of pay, and is capped at no more than $200 a day and $10,000 total.

TEMPORARY NONENFORCEMENT PERIOD OF THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT

The U.S. Department of Labor will not bring enforcement actions against public or private employers for violations occurring within 30 days of enactment of the FFCRA (March 18 - April 17 2020) if:

1. The employer acted “reasonably” and in “good faith.”
2. The employer remedies any violation.
3. Violations weren’t “willful.”
4. The employer, in writing, advises the DOL that it will comply with the act in the future.

MANDATORY TRACKING OBLIGATIONS

For tax-crediting purposes, the IRS requires that leave requests related to emergency family leave and emergency sick leave be in writing, and include:

1. the employee’s name;
2. the date or dates the employee is requesting leave;
3. the reason related to COVID-19 that the employee cannot work (or telework), and written support for it; and
4. a statement that the employee is unable to work for that reason.

FAMILIES FIRST CORONAVIRUS RESPONSE ACT PENALTIES FOR NONCOMPLIANCE

An employer may not retaliate against an employee who requests and/or takes paid sick leave or paid family leave. Penalties for violations of the FFCRA include:

• reinstatement if the employee if terminated;
• back pay and supplemental paid sick leave that was unlawfully withheld (calculated at the employee’s average rate of pay);
• other legal or equitable relief the court deems appropriate.

If an employee prevails against an employer, the court also could award attorneys’ fees and costs.

SEE ALSO

• Families First Coronavirus Response Act
• How Families First Coronavirus Response Act Interacts with Family and Medical Leave Act & California Family Rights Act
• Injuries at Home or Due to the Home Office

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