CORONAVIRUS PANDEMIC: Emergency Family and Medical Leave Expansion Act Becomes Law

The Emergency Family and Medical Leave Expansion Act becomes law on April 2, 2020 and expires on December 31, 2020. Congress acted quickly in passing the law during the Coronavirus pandemic.

The leave Expansion law provides, with several limitations and exclusions, for paid sick leave when:

• the employee is subject to a federal, state, or local quarantine or isolation order related to coronavirus;
• the employee has been advised by a health care provider to self-quarantine due to coronavirus related concerns;
• the employee is experience coronavirus symptoms and is seeking medical diagnosis
• the employee is caring for an individual who, due to the coronavirus: (a) is subject to an isolation or quarantine order from a federal, state, or local government; or (b) has been advised by a health care provider to self-quarantine;
• the employee is caring for a son or daughter if the school or place of care is closed or the child-care provider is unavailable due to coronavirus; or
• the employee is experiencing “any other substantially similar condition specified” by the HHS Secretary in consultation with the Secretaries of Labor and Treasury.

The key provisions are as follows.

Expansion of the Family Medical Leave Act. The law allows a leave for a “qualifying need related to a public health emergency” which includes when an employee is unable to work or telework because of the need to care for the employee’s son or daughter under 18 years of age if the child’s school or child-care provider is closed or unavailable because of a public health emergency.

Special Eligibility Requirements.  The eligibility requirements are different and more generous than those under the FMLA. Under the Expansion law, employees have be employed for at least 30 calendar days. The leave applies only to employers with fewer than 500 employees, as well as covered public sector employers. In addition, the law does  not require employers to to give leave rights to employees who are health care providers or emergency responders the Expansion law.

FMLA use, paid and unpaid. The first ten days of the leave can be unpaid; however, an employee may use accrued paid leave during this 10-day period. After the first 10 days, employers must provide paid FMLA leave for the remaining leave period, up to a maximum of 12 weeks. The leave must be paid at a rate of at least two thirds of an employee’s regular rate of pay for the number of hours an employee would be scheduled to work. The paid leave cannot exceed $200 per day and $10,000 total, per employee.

Limitations. FMLA leave requires that an employer usually must restore employees to their prior positions (or an equivalent) when the leave is over.  However, under the Expansion law, the law excludes employers with fewer than 50 employees if the required leave jeopardizes the viability of their business.  The Law expressly provides excludes that employer with less than 50 employees cannot for be sued for damages.

Employees must be on alert to safeguard their job protections at this difficult time. We at Lebau & Neuworth are available to listen to you and see if we can protect your job rights, including those under all laws pertaining to the Corona Virus pandemic. For more information, contact us (410) 296-3030 or lebauneuworth.com/contact-us.