Health Emergency Leave under the Families First Coronavirus Response Act

President Trump signed The Families First Coronavirus Response Act (FFCRA) last Wednesday, March 18, 2020.  The FFCRA has eight “Divisions,” lettered A to G.  Division C is the “Emergency Family and Medical Leave Expansion Act” (EFMLA). Division E is the “Emergency Paid Sick Leave Act” (EPSLA). The EFMLA, in general, provides paid time off during the current health emergency for an employee to care for a child under 18 years of age. The EPSLA provides paid sick leave for an employee for various reasons related to COVID-19. This blog will discuss the EFMLA; my next blog will discuss the EPSLA. If you are administering leaves under these provisions, please read the law carefully and watch for regulations from the Secretary of Labor. To say this situation is changing rapidly is an understatement.

Health Emergency Leave

The EFMLA adds “Health Emergency Leave” as the seventh general “entitlement to leave” category to the Family and Medical Leave Act and adds an employer pay obligation for that category. This category sunsets on December 31, 2020.

HEL is available due to “a qualifying need related to a public health emergency,” defined as an emergency relating to COVID-19 declared by a federal, state or local authority.  An employee has such a need when “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee 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.”  The EFMLA has definitions for “school” and “child care provider” as well.

 “Employee” and “Employer” Definitions Differ From FMLA

Unlike the FMLA which requires an employee to have worked for the employer from whom leave is sought for at least 12 months, the employment period for eligibility under the EFMLA is only 30 calendar days.

Employers with at least 50 employees must provide FMLA leave. The EFMLA does not apply tp large employers. It only applies to employers with fewer than 500 employees. It also gives the Secretary of Labor authority to issue regulations to exempt smaller employers—those with fewer than 50 employees–if fulfilling the obligations under the ERMLA “would jeopardize the viability of the business as a going concern.”

Also, employers of health care providers and emergency responders may elect to exclude such employees from the EFMLA. The Secretary of Labor is authorized to issue regulations concerning this exclusion as well.

Pay for Health Emergency Leave

The EFMLA contemplates the first 10 days of leave to be unpaid though the employee may elect to substitute available sick time (or the employee may be able to use EPSLA paid time).  Following those ten days, the employer shall pay the employee at least two-thirds of the employee’s regular rate of pay for the number of hours the employee “would otherwise be normally scheduled for work” subject to caps of $200 per day and $10,000 total.  Where an employee’s hours vary, the employer may calculate an average over a 6-month period. If an employee did not work for the employer for six months, the employer can pay the employee for the number of hours based on the “reasonable expectation” of the employee at the time of hire.

The EFMLA also allows an employer who is a party to a multiemployer collective bargaining agreement to fulfill its obligations under this law by paying into a multiemployer fund, plan or program that pays EFMLA benefits.

EFMLA Restoration Rights

The EFMLA gives smaller employers—those with fewer than 25 employees—more flexibility than allowed in the FMLA to restore an employee from HEL leave, provided the employer satisfies certain conditions. While the conditions are less than clear, what seems clear is that if the employee’s position does not exist at the end of the leave, the employer must make “reasonable efforts” to restore the employee to an equivalent position and, failing that, the employer must contact the employee when an equivalent position becomes available. The contact period is one year beginning the earlier of the date on which the HEL need ends or 12 weeks after the date on which the employee’s HEL begins.