FAQ: Family Medical Leave Expansion Act

Updated MARCH 25, 2020

NOTE: This webpage and article will be updated regularly as the law is further clarified by the Department of Labor. 

 

By William E. Gaar, SPHR
and Jillian A. Pollock
Attorneys & Shareholders

 

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 (“FMLA Expansion Act”); 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 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.  The law was to become effective not later than fifteen (15) days after being signed into law by President Trump.  Based on the DOL’s guidance, they now have moved that date to April 1, 2020.  As a result, until April 1, 2020, Employers must follow the existing federal Family and Medical Leave Act as it applies to their businesses. Note that courts have determined employees with respiratory illness similar to the flu and who were unable to work and also treated 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 (OFLA) 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. It is important to note that Congress has authorized the Secretary of Labor to exempt Employers with fewer than 50 Employees if the FMLA Expansion Act’s requirements jeopardize the viability of the business as a going concern. But that has not happened as of yet. Buckley Law is monitoring whether the Secretary of Labor will exempt Employers with fewer than 50 Employees. For now, the FMLA Expansion Act applies to Employers with fewer than 500 Employees.

Are all Employees covered by the FMLA Expansion Act?  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.

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 may be required to pay sick pay during the first ten (10) days.

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. While no courts have interpreted this section of the law, as written and based on the public purpose behind this law, an Employer will be required to allow an Employee to use any statutory paid leave available during the unpaid ten (10) day period.  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.

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 the Employer can show that the Employee’s position was eliminated for a legitimate business reason during the Employee’s leave, the Employee has no reinstatement rights.  Employers should be cautious to avoid both retaliatory actions against an Employee who has taken any FMLA leave, including leave under the FMLA Expansion Act, 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.

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, 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, 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.

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