What is the status of the federal government’s changes to the Family and Medical Leave Act?

Employment Law  

March 20, 2020

Downey Brand COVID-19 News and Updates


On Thursday, March 18, 2020, the President signed the “Families First Coronavirus Response Act,” which includes the “Emergency Family and Medical Leave Expansion Act” and the “Emergency Paid Sick Leave Act.” Both laws apply to public agencies and employers with fewer than 500 employees. The laws will expire on December 31, 2020.

The Emergency FMLA Expansion

The Emergency provisions provides 12-weeks of job-protected paid Family and Medical Leave Act (FMLA) leave to qualifying employees who have worked for the employer for at least 30 calendar days.  The first 10 days may be unpaid. Employees may choose to use accrued PTO, vacation, or sick leave during the first 10 days. After the first 10 days, employers must compensate employees in an amount that is not less than two-thirds of the employee’s regular rate of pay as discussed below.

It also expands qualifying reasons for FMLA leave to include someone who is unable to work or telework due to a need to care for a son or daughter, under 18 years of age, whose school or daycare has been closed as a result of the COVID-19 pandemic.

It requires emergency paid FMLA leave after the first 10 days of leave, in an amount that is not less than 2/3 of an employee’s regular rate of pay. Part-time employees get the number of hours of paid FMLA leave equal to the number of hours they work, on average, over the last six months. The paid FMLA leave is not to exceed $200 per day and $10,000 in the aggregate. This paid FMLA leave does not preempt state and local sick leave entitlements.

Job protection requirements do not apply in certain circumstances to businesses with fewer than 25 employees. Other businesses with less than 50 employees may be exempted from certain requirements based on regulations to be developed by the Secretary of Labor.

Emergency Paid Sick Leave Act (EPSLA)

If employees are unable to work or telework for a qualifying reason, employers must make 80 hours of paid sick time available for immediate use by full time employees. Part time employees are entitled paid sick time equal to the number of hours that such an employee works, on average, over a two-week period. If the paid sick time is for reasons 1-3 below, it is capped at $511 per day and $5,110 in the aggregate. If it is for reasons 4-6 below, it is capped at $200 per day and $2000 in the aggregate. The qualifying reasons include:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order as described in item 1 above, or has been advised as described in item 2 above.
  5. The employee is caring for a son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions, or
  6. The employee is experiencing any other substantially similar condition specified by Health and Human Services.

In addition to the above, employers may not condition the paid sick time on the employee finding a replacement to cover their shift. Employers may not require the employee to use other paid leave provided by the employer before using paid sick time. This suggests that the paid sick time is in addition to any paid leave already provided under state law or employer policies. Nor may employers retaliate against or terminate employees for taking leave in accordance with the Act. Failure to provide paid sick time is considered to be a violation of the Fair Labor Standards Act and the penalties it provides will apply to violations.

The upshot of this is that leave taken for reasons 1-2 and 4-6 above are FMLA qualifying. Whether leave taken under reason four, for seeking a medical diagnosis, is FMLA-qualifying may depend on specific circumstances. For the FMLA qualifying leaves, the first two weeks of leave will be paid pursuant to either the EPSLA (subject to the caps discussed above) or existing employer leave policies at the employee’s election. The remaining weeks will be paid through the Emergency FMLA leave (also capped as discussed above). During remaining FMLA leave, employees will be entitled to take advantage of existing employer leave policies, as well as state and local sick leave requirements.  Depending on the circumstances, they may also be eligible for State Disability Insurance or Paid Family Leave from the State of California.

COVID-19 is unprecedented and we are working hard to keep everyone up to speed with the latest developments. Please reach out to a Downey Brand attorney if you have further questions or concerns.