President Trump signed The Families First Coronavirus Response Act (FFCRA) last Wednesday, March 18, 2020. The FFCRA has eight “Divisions,” lettered A to G. Division C is the “Emergency Family and Medical Leave Expansion Act” (EFMLA). Division E is the “Emergency Paid Sick Leave Act” (EPSLA). The EFMLA, in general, provides paid time off during the current health emergency for an employee to care for a child under 18 years of age. The EPSLA provides paid sick leave for an employee for various reasons related to COVID-19. This blog will discuss the EFMLA; my next blog will discuss the EPSLA. If you are administering leaves under these provisions, please read the law carefully and watch for regulations from the Secretary of Labor. To say this situation is changing rapidly is an understatement.
Health Emergency Leave
The EFMLA adds “Health Emergency Leave” as the seventh general “entitlement to leave” category to the Family and Medical Leave Act and adds an employer pay obligation for that category. This category sunsets on December 31, 2020.
HEL is available due to “a qualifying need related to a public health emergency,” defined as an emergency relating to COVID-19 declared by a federal, state or local authority. An employee has such a need when “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” The EFMLA has definitions for “school” and “child care provider” as well.
“Employee” and “Employer” Definitions Differ From FMLA
Unlike the FMLA which requires an employee to have worked for the employer from whom leave is sought for at least 12 months, the employment period for eligibility under the EFMLA is only 30 calendar days.
Employers with at least 50 employees must provide FMLA leave. The EFMLA does not apply tp large employers. It only applies to employers with fewer than 500 employees. It also gives the Secretary of Labor authority to issue regulations to exempt smaller employers—those with fewer than 50 employees–if fulfilling the obligations under the ERMLA “would jeopardize the viability of the business as a going concern.”
Also, employers of health care providers and emergency responders may elect to exclude such employees from the EFMLA. The Secretary of Labor is authorized to issue regulations concerning this exclusion as well. Continue reading