On March 18, 2020 U.S. Congress passed legislation which expands employee rights under FMLA (Family And Medical Leave Act of 1993). This is contained in the Families First Coronavirus Response Act, Division C. Under previous law, all FMLA leave was unpaid. New legislation now adds a paid leave provision. Here is a summary of the new law for HR consultants:
Effective Dates:
From April 2, 2020 through December 31, 2020.
Eligible Employees:
An employee who has been employed for at least 30 calendar days before taking the new FMLA. Apparently, this applies to both full and part-time employees (Section 110(a)(1)(A).
Which Employers?
Companies that have fewer than 500 employees for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar year. (Section 110(a)(1)(B).
However, for businesses that have fewer than 50 employees, there may be an exemption when the leave would jeopardize the “viability of the business as a going concern.”
Reason for Taking a Leave: The reason for taking Enhanced FMLA leave is limited to only one circumstance: based on a public health emergency, if the employee is unable to work (or telework) due to a need to care for a son or daughter under 18 years if the school or place of care has been closed (Section 110(a)(2)(A). This means it applies even to situations in which a child is 16, 17 or 18 years of age and is traditionally able to care for himself or herself. And there is no provision that the parent must be present or care for the child at all times—does that I mean a parent can watch the child per couple hours and then go off and engage in other activities? Nor does there appear to be requirement for the child stay home.
The qualifying public health emergency is the Coronavirus outbreak declared by federal, state, or local authority. There is currently a national state of public health emergency.
A school is defined as either a childcare facility, as well as elementary or secondary schools.
Unpaid Leave:
Leave is unpaid for the first 10 days. But the employee can elect to use accrued and paid vacation, PTO or sick leave (Section 110(b)(1).
Paid Leave:
From the 11th day on, the leave is paid (Section 110(b)(2)). For paid leave, the employee receives an amount not less than two thirds of that person’s regular rate of pay. But in no event shall such paid leave exceed $200 per day and $10,000 total (Section 110(a)(1)(B)).
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