If you work for a private employee with fewer than 500 employees or a public employer (other than some Federal agencies) for at least 30 days, you are generally eligible for the expanded PAID family or medical leave under this new law if you require a medical leave for specific reasons related to COVID-19. Employers with fewer than 50 employees can be exempted from the obligation to provide the expanded (paid) leave if they can show that the leave will “jeopardize the viability” of the business. Healthcare providers and emergency responders may be exempted by their employers but, even if exempted from this Act , these employees can take earned or accrued leave in accordance with established employer policies. Additionally, even if you elect to take paid FML leave, your employer must continue your health coverage.
You are eligible if you:
Are unable to work or telework your normal work hours because you need to care for your minor child because your child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency
You must request the leave by:
- Requesting the Emergency FMLA leave as soon as reasonably possible after the need for the leave is known.
- Completing the FMLA paperwork provided by your employer and providing any required medical statements.
How does this help you? If approved, you are entitled to:
- Up to 12 weeks of Emergency FMLA leave, (assuming you have not already exhausted the entire 12 weeks in the preceding year)
- The first 10 days of Emergency FMLA leave are unpaid. But, an employee can request Emergency Paid Sick Leave (see page on “Emergency Paid Sick Leave Act”) to cover the 10 days unpaid Emergency FMLA Leave (which would be subject to the caps in that Act), or the employee can use other employer-provided vacation, sick leave, or other PTO which would not be subject to the caps in the EPSLA and could be more). A part time employee whose entitlement to EPSL is based on an average number of hours less than 40 per week, may not have enough EPSL to cover this entire 10 day period.) Per the DOL Rule, an employee can not simultaneously take the EPSL and preexisting paid leave to increase the amount being received, unless the employer agrees.
- On Day 11, the employer must generally pay a full-time employee at least two-thirds their regular rate for the number of hours the employee would normally be scheduled. This is limited to $200 per day and $10,000, total. Further, an employee can elect, or an employer can require, that an employee use any other leave offered concurrently with the expanded FMLA as long as the other time would have been available to take care of a child to increase the amount being received ( like vacation or personal time of other paid time off, but not medical or sick leave unless the employee is also ill.)
- For employees whose schedules varied, the employer must generally pay based on the average number of hours the part-timer worked in the six months before taking Emergency FMLA. For those who worked less than six months, the calculation is based on the average number of hours the employee was reasonably expected to work when hired.
You may be able to use the leave intermittently :
You can use the Emergency leave available here intermittently (and in any increment) only if your employer permits it and if you are not able to telework your normal schedule of hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons.
What rights do you have to be restored to your job at the end of the leave?
- As long as the employer has more than 25 employees, an employee is entitled to return to their former job, or an equivalent job, at the end of the Emergency FMLA leave.
- For employers with 25 employees or fewer, those employers are not required to return employees on leave to work if the employee’s position no longer exists because of an economic downtown or “other changes in operating conditions of the employer” affecting employment and caused by a public health emergency, and the employer makes reasonable efforts to return the employee to an equivalent position with “equivalent employment benefits, pay, and other terms and conditions of employment”. If an equivalent position becomes available within a year after the leave ends, the employer must make reasonable efforts to contact the employee.
YOU CANNOT BE FIRED FOR SEEKING THIS BENEFIT:
Under the EFMLEA, employers are prohibited from interfering with, restraining, or denying an employee’s exercise of or attempt to exercise any right under the FMLA, including the EFMLEA; discriminating against an employee for opposing any practice made unlawful by the FMLA, including the EFMLEA; or interfering with proceedings initiated under the FMLA, including the EFMLEA.”
But these claims must be filed timely AND your rights change depending on whether or not your employer has 50 or more employees. Please call promptly if you have questions or concerns.