Emergency Family and Medical Leave Expansion Act

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As discussed in the last section the FFCRA includes provisions for emergency Family Leave - this is the Emergency Family Medical Leave Act (EFMLEA). These are its provisions.

COVERED EMPLOYERS

• Private sector employer with fewer than 500 employees.
• Public sector employers with at least one employee.

QUALIFYING REASONS TO TAKE EMERGENCY FAMILY AND MEDICAL EXPANSION ACT LEAVE

Employees taking emergency family and medical leave pursuant to EFMLEA are entitled to the following basic benefits:

• Employees can only use EFMLEA leave to care for his or her son or daughter whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19 related reasons.
• Up to 12 work weeks of job-protected leave, with continuation of health insurance.
• 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 prior to being eligible.

There is only one qualifying reason for leave under the Emergency Family and Medical Leave Expansion Act and that is leave to care for his or her child whose school or childcare 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 is “unpaid” but the employee may choose to use paid sick leave under Emergency Sick Leave, or accrued paid time off, at the same time as unpaid Emergency Family Leave.

Up to 10 weeks of paid leave is available to eligible employees. The leave is paid at two-thirds the employee’s regular rate of pay and pay is capped at no more than $200.00 a day or $10,000.00 total under Emergency Family Leave.

TEMPORARY NON-ENFORCEMENT PERIOD OF FFCRA

The Department of Labor (DOL) will not bring enforcement actions against public or private employers for violations occurring within 30 days of the enactment of FFCRA.

Between March 18 and April 17, 2020, the DOL will not enforce violations under the Act. The DOL won’t enforce if:

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

MANDATORY TRACKING OBLIGATIONS

The IRS requires that the leave request related to Emergency Family Leave and Emergency Sick Leave be in writing to get tax credit and must include:

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

FFCRA PENALTIES FOR NON-COMPLIANCE

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

• 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 may deem appropriate.
• If an employee prevails against an employer, the court could also award attorney’s 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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