NOTE: This webpage and article will be updated regularly as the law is further clarified by the Department of Labor.
RELATED ARTICLE: EMERGENCY PAID SICK LEAVE ACT – FAQ
On March 18, 2020, as a direct result of the ongoing COVID-19 pandemic, President Trump signed the Families First Coronavirus Response Act (“Act”) into law. This new Act is also known as HR 6201. The two key laws that will impact many Employers are the: (1) Emergency Family and Medical Leave Expansion Act (“E-FMLA”); and (2) Emergency Paid Sick Leave Act (“Emergency Paid Sick Leave Act”).
Buckley Law’s Employment Group has been closely following new federal and state laws and emergency orders as they develop to keep its clients up to date in an ever-changing environment. Below are the highlights based found in the FMLA Expansion Act and the Emergency Paid Leave Act as they apply to businesses and Employees.
When does the FMLA Expansion Act become Effective? Based on the Department of Labor’s recent guidance, Employers should consider the FMLA Expansion Act effective on April 1, 2020. Based on the DOL’s guidance, on April 1, 2020, covered Employers must offer EFMLA to eligible employees. Keep in mind that covered Employers subject to FMLA remain obligated to comply with FMLA when a CV-19 event triggers a serious health condition for an eligible Employee. Note that courts have held that Employees who have a respiratory illness similar to the flu (think CV-19) and who were under a regime of care by their health provider qualify for a serious health condition under FMLA. CV-19 will more likely than not have an employee under the care of a health care provider. Each inquiry will be fact specific. Further, keep in mind that regardless of the effective date, Employers should be tracking all leave local and state leave laws applicable to their business in order to avoid COVID-19 related liability.
What does the FMLA Expansion Act require an Employer to do? Very simply, the FMLA Expansion Act requires Employers to provide paid leave if an Employee is unable to work (or telework) due to a need for leave to care for a son or daughter under 18 years of age whose school or a place of care has been closed, or whose child care provider is unavailable, due to a public health emergency. A public health emergency is an emergency related to COVID-19.
Are all Employers required to follow the FMLA Expansion Act? The FMLA Expansion Act applies to all Employers with fewer than 500 Employees. This threshold applies regardless of when you started employing any of your labor force. Therefore, all Employees are counted, including part-time Employees, regardless of when they were hired. However, the DOL Guidelines recently clarified that an Employer with less than 50 Employees may not be covered by E-FMLA if the leave obligations will jeopardize the viability of the business as a going concern. A fact specific inquiry regarding the viability of a business operating at minimal capacity will be necessary to determine if your business is a covered entity under this small Employer exemption. Employers intending to use the small Employer exemption are advised to seek advice from experienced Employment Law counsel prior to denying benefits based on this exception.
Are all Employees covered by E-FMLA? All Employees who have been employed thirty (30) or more calendar days are covered regardless of how many hours they work. In other words, full-time, part-time, and temporary Employees are covered by the FMLA Expansion Act. However, the DOL Guidelines recently clarified that employees who perform work as “health care providers” and “emergency responders” may be exempted by their employer from E-FMLA. “Health care providers” includes individuals who are employed “at a doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer or entity.”
If my business furloughs my Employees am I required to provide E-FMLA benefits? If an Employer reduces its Employees hours due to lack of work, Employees may not use E-FMLA leave benefits for those hours. As a result, Employers that make a decision to keep their workforce on its payroll but not working due to lack of work will not be required to provide either E-FMLA leave or the pay associated with that leave. However, an Employer will be required to maintain health care coverage during E-FMLA under the same conditions as prior to an eligible Employee taking leave. Once the employment relationship terminates, Employers are no longer required to provide benefits but must follow all state and federal continuation coverage (i.e. COBRA) laws.
What leave is the Employee entitled to receive from an Employer? An Employee is entitled to receive up to twelve (12) weeks of paid leave under the FMLA Expansion Act. The first ten (10) days of leave may be unpaid, although the Employee may be able to use other paid leave during this ten (10) day period. After the first ten (10) days, an Employer must provide paid leave, subject to daily and total aggregate caps, calculated based on a formula outlined in the FMLA Expansion Act. Before you come to the conclusion that the first ten (10) days are unpaid, consider the bullet point below regarding use of other leave as well as the Paid Sick Leave Act bulletin. An Employer will be required to pay sick pay to eligible Employees during the first ten (10) das based on local, state and private leave bank obligations. If an Employee has already used a part or all of the 12 weeks of available leave under FMLA, then an Employee is only eligible for the remaining weeks for a E-FMLA qualifying reason. The E-FMLA leave is not in addition the 12 weeks of FMLA leave but is an additional basis for becoming eligible for leave.
Can the Employer prohibit an Employee from using existing Employer paid leave such as vacation, sick or personal paid leave during the ten day unpaid leave period? The Employee has the right to use any accrued vacation, personal, medical, sick, or other paid leave during the first ten (10) days of the leave. This includes paid leave under the new federal Emergency Paid Sick Leave Act (see Emergency Paid Sick Leave Act article). Further, as many Employers already know, Oregon and Washington law requires paid sick leave that covers an Employee’s absence if the Employee’s child’s school is closed due to a public health emergency. An Employer and an Employee may agree to allow the E-FMLA leave to be supplemented by other available leave but is not required to do so. And the Employee gets to choose which leave to use first.
How do Employers calculate paid leave under the FMLA Expansion Leave Act? An Employer must pay an Employee no less than two-thirds of the Employee’s regular rate of pay based on the number of hours the Employee would have been regularly scheduled to work. If the Employee has a varying schedule, the law requires a specific method of calculation that is basically an averaging exercise using an actual or anticipated six (6) month period.
What are the daily and total aggregate caps on paid leave? The total paid leave, regardless of the calculation above, may not exceed $200 per day or $10,000 total.
What are the Employer’s obligations once the need for the leave is over? Employers must return the Employee to the same or a suitable position when the reason for the leave ends. Employers with less than twenty-five (25) Employees are not required to return the Employee to work if the job was eliminated for economic conditions or other operating changes related to COVID-19, and the Employer follows specific guidelines calculated to rehire the Employee if/when the eliminated position becomes available again.
What if the position is eliminated due to a legitimate business reason such as a loss of income for the business? If before, on or after April 1, 2020, the Employer can show that the Employee’s position was eliminated for a legitimate business reason the Employee has no leave rights, including reinstatement rights. Employers should be cautious to avoid both retaliatory actions against an Employee who has taken any FMLA leave, including leave under E-FMLA, and interfering with the Employee’s right to take leave. An Employer should carefully consider and document its legitimate business reason for eliminating the position to be able to defend against a retaliation or discrimination claim.
When does the expanded leave right end? As written, the FMLA Expansion Leave Act ends on December 31, 2020. However, Employers should pay close attention as often once labor laws are enacted, they do not go away. The Buckley Law Employment Group will continue to monitor changes in the laws and keep you updated. Currently, the DOL Guidance continues to report that E-FMLA expires on December 31, 2020.
Am I required to give my Employees Notice of their new leave rights? While the law does not specifically require notice in the FMLA Expansion Act, FMLA requires that Employers give their Employees Notice of the right for leave. An Employer unfamiliar with FMLA notice obligations should contact an experienced Employment Law attorney for advice. In addition to the statutory procedures required when an Employee goes out on FMLA leave, Buckley Law encourages Employers to include the new leave in their Employee handbooks, publish the leave rights on their HR web page if they have one and post the information in common areas where other leave rights and human resource Notices are posted. In addition, as with the Emergency Paid Sick Leave Act, monitor the Department of Labor web page for an official leave Notice poster.
As with all your Employment Law matters, seek guidance from an experienced Employment Law attorney. Buckley Law’s Employment Group will continue to monitor Washington and Oregon’s local and state laws as well as the federal employment laws as we work our way through this crisis. We are here to partner with you. If you have questions or need legal assistance on employment law, please contact William E. Gaar or Jillian A. Pollock at 503-620-8900 or visit our website at www.buckley-law.com.
William E. Gaar, SPHR
William E. Gaar, SPHR, is a shareholder in the firm’s employment law practice group. He is an advocate and litigator for his business and employer clients, providing practical solutions to everyday concerns and protecting his clients’ rights in state and federal court, private arbitration and mediation, and before state and federal agencies. Well versed in all areas of employment and commercial/consumer law, he has assisted every size of organization.
Jillian A. Pollock
Jillian A. Pollock is a shareholder in the firm’s employment law practice group. Her practice includes representing employers in federal and state court proceedings and in administrative proceedings. Her practice also includes employment counseling.
This material is provided for informational purposes only. The provision of this material does not create an attorney-client relationship between the firm and the reader, and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this article are not a substitute for legal counsel. Do not take action in reliance on the contents of this material without seeking the advice of counsel.