FFCRA: Emergency Family & Medical Leave Expansion Act

March 20, 2020

When is the Act effective?

The effective date of the FMLA Expansion Act under the FFCRA is April 1, 2020. The FFCRA is effective through December 31, 2020.

Who is a “covered employer”?

The Act applies to employers with fewer than 500 employees. Small businesses with fewer than 50 employees whose viability is jeopardized by providing leave may be exempted if the Secretary of Labor issues regulations providing an exemption. To date, no regulations have been issued.

Who is an “eligible employee”?

Employees who have been employed for at least 30 calendar days. Certain health care providers and emergency responders may not be eligible if their employer elects to exclude them from the provisions of the Act or if the Secretary of Labor issues regulations excluding them from eligibility. To date, no regulations have been issued.

What type of leave is available?

Leave is available for a “qualifying need related to a public health emergency.” A qualifying need applies to employees who are unable to work or telework due to a need for leave to care for a son or daughter whose school or place of care has been closed or whose childcare provider is unavailable due to the COVID-19 public health emergency.

How much leave is available?

Up to 12 weeks.

Is leave paid or unpaid?

The first 10 days of leave are unpaid, subject to an employee’s election to substitute other paid leave provided by the employer, e.g., accrued vacation leave, personal leave, or medical or sick leave.

After 10 days, employers must provide paid leave to eligible employees at not less than 2/3 of an employee’s regular rate of pay for the number of hours the employee would normally have been scheduled to work. Paid leave is limited to no more than $200 per day and $10,000 total.

Are employees required to provide notice that leave is needed?

If the need for leave is foreseeable, an employee must provide the employer with as much advance notice as is practicable.

Are employees who take leave entitled to job restoration at the conclusion of the leave?

Yes, with some exceptions. Employers with fewer than 25 employees need not restore employees who take leave if:

  1. the position held by the employee when the leave started no longer exists due to economic conditions or other changes in operating conditions affecting employment that are caused by the COVID-19 emergency during the period of leave;
  2. the employer makes reasonable efforts to restore the employee to an equivalent position; and
    if the reasonable efforts fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available within the one year period beginning on the earlier of:

    1. the date upon which the need for leave concludes; or
    2. 12 weeks after the leave commenced.