Families First Coronavirus Response Act – Part 2
The second paid leave provision included under the Families First Coronavirus Response Act (“FFCRA”) is the Emergency Family and Medical Leave Expansion Act (“Expansion Act”). The Expansion Act expands the Family and Medical Leave Act (“FMLA”) and broadens its coverage. This blog will highlight the important differences between the Expansion Act and the FMLA.
Emergency Family and Medical Leave Expansion Act
Generally, the FMLA only covers employers with more than 50 employees. However, the Emergency Family and Medical Leave Expansion Act (“Expansion Act”) broadens coverage to all private employers with fewer than 500 employees. In addition, unlike the FMLA which only covers employees who have been employed for at least 12 months, the Expansion Act expands coverage to employees who have been employed for at least 30 days.
Moreover, the Expansion Act amends the FMLA to include a new category of protected leave for employees with a “qualifying need related to a public health emergency.” Under the Expansion Act, a qualifying need refers to an employee who cannot work or telework due to the need to care for a son or daughter under 18 years of age if, because of a public health emergency regarding COVID-19, the child’s school or place of care has been closed or his/her child care provider is unavailable.
Under the Expansion Act, the first ten days of leave required by a public health emergency related to COVID-19 is unpaid. However, an employee may decide to substitute accrued paid leave during the first 10 days. After the first ten days, leave must be paid at a rate at least two-thirds the employee’s regular rate of pay based on the employee’s regular schedule. However, paid leave cannot exceed $200.00 per day or $10,000.00 in total.
Furthermore, a private employer may claim a tax credit against payroll taxes for the wages paid to employees under the Expansion Act, subject to the employee caps on total paid leave.
The Expansion Act allows twelve weeks of leave. The first two weeks are unpaid and the remaining ten weeks are paid leave. In addition, employees must provide notice to their employers as soon as possible when they intend to utilize leave covered under the Expansion Act.
Ordinarily, the FMLA requires employees returning from leave the right to return to the same or an equivalent position. The Expansion Act provides an exception to this general rule for employers with less than 25 employees. In fact, if the employee’s position no longer exists because of economic or other operating conditions affecting employment and caused by a public health emergency, the employer makes reasonable efforts to return to the employee to an equivalent position, or the employer makes reasonable efforts to contact the employee about available equivalent positions, then the employee does not have the right to return to the same or equivalent position.
If you live in Rhode Island and have been impacted by COVID-19, please refer to the Rhode Island Department of Labor and Training’s Workplace Fact Sheet at http://www.dlt.state.ri.us/pdfs/COVID-19%20Workplace%20Fact%20Sheet.pdf.