On March 14, 2020, the U.S. House of Representatives passed the Families First Coronavirus Response Act and Emergency Paid Leave Act of 2020. The Bills, if passed by the Senate, will provide: paid sick leave and unemployment benefits to employees taking leave as a result of COVID-19; expand FMLA eligibility and qualifying reasons for taking job-protected unpaid leaves of absence; free coronavirus testing; expand food assistance; and require employers to provide additional protections for health care workers.
Of particular significance to employers of any size are the amendments the Bill proposes to the FMLA. The Bill would amend the FMLA to expand the number of employers covered by the FMLA so that even small employers are covered to the extent they must provide unpaid leave as a result of a declared public health emergency. Employers would be defined to include all employers who employ fewer than 500 employees for each working day during 20 or more calendar weeks. Thus, virtually all employers are covered by the FMLA, however, the Bill provides the Secretary of Labor with authority to issue regulations excluding certain small employers for good cause.
The group of eligible employees permitted to take FMLA leave for a public health emergency is also expanded beyond the eligible employees for other qualifying FMLA reasons. Any employee who have been employed for at least 30 days by the employer is eligible for FMLA leave taken as a result of the public health emergency rather than being required to wait 12 months to become eligible.
The amount of leave available to take is the same for other FMLA qualifying reasons. Eligible employees can take up to 12 weeks of leave to:
- comply with the recommendation or order by a public health authority having jurisdiction or a health care provider where the employee’s physical presence would jeopardize the health of others due to exposure of the employee to coronavirus or exhibition of symptoms of coronavirus by the employees and the employee is unable both perform the functions of the position and comply with the order of the health care provider or public health authority;
- Care for a family member of the eligible employee where a public health authority or healthcare provider makes a determination that the family member’s presence in the community would jeopardize the health of other members of the community because of the exposure of such family member to coronavirus or exhibition of symptoms of coronavirus by such family member; or
- Care for a son or daughter of the eligible employee where the child’s school or other place of care has been closed or the child care provider is unavailable due to a public health emergency.
Leave allowed that is related to a public health emergency may not be taken intermittently or on a reduced schedule basis. The first 14 days of leave under the proposed law may be unpaid. Employees may elect to substitute any paid leave the employee has accrued (e.g., vacation, personal or medical leave) but employers may not require employees to substitute paid leave for the unpaid leave. After the first 14 days of leave, the employer shall provide paid leave at a rate of 2/3 the employee’s regular rate of pay for hours the employee would have usually worked for each day the employee takes leave qualifying for public health emergency leave.
Employers may request and require certification of the need for leave but may not require certification of the need for leave from the employee until at least 3 weeks after the date on which the employee takes the leave. This provision is in contrast to the employer’s normal ability to require FMLA healthcare provider certifications be returned in 15 days.
Restoration rights of employees taking FMLA leave for a public health emergency from large employers (i.e., over 25 employees) have the usual FMLA job restoration rights. Employees of small employers have more limited restoration rights. Employees of employers with fewer than 25 employees are not entitled to restoration when:
- the position held by the employee no longer exists due to economic conditions or other changes in operating conditions of the employer affecting employment and caused by the public health crises during the period of leave;
- The employer makes reasonable efforts to restore the employee to an equivalent position; and
- If the reasonable efforts to restore to an equivalent position fail, the employer makes reasonable efforts to contact the employee if an equivalent position become available during the 1-year beginning on the earlier of the date when the qualifying need related to the public health emergency ends or the date that is 12 weeks after the date on which the employee’s leave starts.
While this Bill is not law, it is expected that the Senate will pass a similar version of the Bill and that it will become law. Small employers that are not used to complying with the FMLA should consult their professional advisors to learn what steps are needed to comply with if this Bill passes. Larger employers should address the additional qualifying reasons employee can take FMLA leave for a public health emergency and consult their professional advisors if they have questions regarding these new obligations.
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