On March 18, 2020, the Families First Coronavirus Response Act was signed into law.
Among other things, the Act temporarily expands the existing federal Family and Medical Leave Act ("FMLA").
The FMLA expansion is only effective through December 31, 2020. It also takes effect no later than April 2, 2020.
The FMLA expansion requires covered employers to provide up to 12 weeks of protected leave (“Emergency Leave”) to eligible employees who are unable to work (or telework) because of the need to care for a child under 18 years of age due to closure of school or the child’s place of care, or if the child care provider is unavailable due to the corona virus.
The Act eases FMLA’s eligibility requirements and requires employers to provide Emergency Leave to any employee who has been employed for at least thirty (30) calendar days. The Act allows the Department of Labor and/or employers of health care providers and emergency responders to exclude such categories of employees from eligibility.
Employers are not required to provide paid FMLA leave during the employee’s initial ten (10) days of Emergency Leave. Employees may elect to use accrued paid time off during the initial 10-day period, but employers may not require such use. Following expiration of the 10-day period, employers are required to pay an employee two-thirds of his or her regular rate of pay, based on the number of hours the employee would otherwise be normally scheduled to work. Total paid leave is capped at $200 per day and $10,000 in the aggregate for each employee.
SMALL EMPLOYER EXCEPTION
The Act provides the Department of Labor with the authority to exempt small businesses with fewer than fifty (50) employees from compliance when “imposition of [the FMLA expansion] would jeopardize the viability of the business as a going concern.”
Generally, the FMLA’s reinstatement rights apply to Emergency Leave. However, the Act creates a hardship exception for smaller employers with less than twenty-five (25) employees.