In response to the novel coronavirus, aka COVID-19, outbreak, President Trump has signed into law emergency legislation known as the Families First Coronavirus Response Act (FFCRA) to assist American families and businesses.
Emergency paid leave amendments to the Family Medical and Leave Act
During normal business circumstances, the FMLA protects workers by preventing businesses from dismissing them for certain medical or family situations.
The FFCRA amends the FMLA to include paid leave for public health emergencies when an employee is unable to work (or telework) due to a school or child care facility closure, or if the individual is unavailable as a result of COVID-19 precautions.
So FFRCA not only provides paid sick leave for employees who have been impacted by COVID-19, it also provides them emergency family leave, and protects them from losing their jobs.
The benefits of PHE leave under FMLA
Paid family and medical leave under the FMLA will be slightly different from the emergency paid leave that we described above. Here are the details:
- Employees are eligible for two-thirds of their regular pay based on the hours they’d normally work.
- Benefit cannot exceed $200 per day or the aggregate of $10,000 and 50 days.
- Variable-hour employees will be eligible based on the average number of hours they worked in the six months prior to the start of their leave.
- If the employee didn’t work the last six months, then it will be based on the amount that was anticipated when they were hired.
Employees are eligible if they have been employed for at least 30 days and are unable to work because of the need to care for a child under 18 years of age whose school or place of care has been closed, or if they are unavailable due to a COVID-19 PHE. Just like the emergency paid leave, employees who are healthcare providers and emergency responders are not eligible for this benefit.
Who’s subject to these new rules?
These FMLA amendments will apply to employers with fewer than 500 employees.
Just like for emergency leave, we’ve broken out the conditions between employers and employees.
- An employee may elect to use other accrued paid sick, personal, or vacation time during the first 10 days of leave. This would allow employees to still get paid during the initial period of emergency leave under FMLA.
- An employee must provide the employer with notice as soon as is practical, and the employer may require documentation to support the need.
- Like all leave under the FMLA, the employer must restore the employee to their position after the leave has ended.
- An employer does not have to pay an employee for their first 10 days of leave, but must pay for every day of leave after the first 10 days have passed.
- Employers of unions must contribute to a fund that will be distributed by the union to its members based on their hours worked.
Employers with 50 employees may be exempt from these requirements if the US Secretary of Labor determines that they will jeopardize the business’s viability as a going concern.
Employers with fewer than 25 employees can be exempt from restoring an employee to their position after their leave but only if they meet the following criteria:
- The position no longer exists due to economic conditions caused by the PHE
- The employer makes reasonable efforts to restore the employee to a similar position with equivalent compensation and benefits
- If the above fails, the employer makes reasonable efforts in the year following the end of the leave (or 12 weeks after the leave starts, whichever is earlier) to let the employee know when an equivalent position exists again
Consistent with the FMLA, these new amendments make it very difficult for an employer to dismiss a worker for taking this leave. And they can only do so after trying to provide recourse via another equivalent position.