In response to the unprecedented public health crisis arising from the Novel Coronavirus outbreak, and to address the needs of workers who take medical leave, the federal government included important expansions of the Family and Medical Leave Act (“FMLA”) within the Families First Coronavirus Response Act (the “Act”), which was passed into law on March 18, 2020. The Act will become effective on or about April 2, 2020 and contains important protections that all employees should be aware of.
The Act expands the definition of an “eligible employee” entitled to medical leave.
The FMLA provides 12 weeks of medical leave to qualifying employees who have been employed with their employer for at least 1 year for the birth of a child, the adoption of a child, if the employee has a serious health condition, to care for an immediate family member with a serious health condition, or for an emergency arising from active duty in the armed forces.
The Act expands coverage and provides for 12 weeks of medical leave for employees who have been employed for at least 30 calendar days and have a “qualifying need related to a public health emergency.” A “public health emergency” is defined as an emergency with respect to Coronavirus declared by a federal, state, or local authority.
As an important caveat, the U.S. Department of Labor has the discretion regarding the extent this definition applies to certain types of healthcare workers, which this article does not address.
Definition of Employer
The Act changes the definition of “employer” from “an employer having 50 or more employees during each of 20 or more calendar workweeks in the current or preceding calendar year” to “an employer with fewer than 500 employees during each of 20 or more calendar workweeks in the current or preceding calendar year.” Despite the changed definition, employers with fewer than 50 employees may still be exempt from the expanded FMLA requirements within the Act.
It appears that to get the expanded employee protections, certain constituencies required a more limited definition of “employer” so that large corporate entities would not be mandated to provide the additional employee protections.
Qualifying Need Related to a Public Health Emergency
An employee cannot get the expanded protections afforded by the Act unless the leave is based on a qualifying need related to a public health emergency. A “qualifying need related to a public health emergency” is defined as a need for leave:
- To comply with the recommendation of a medical provider or public health official that the presence of the employee on the job would jeopardize the health of others because of exposure to the Coronavirus or an exhibition of Coronavirus symptoms;
- To care for a family member of an eligible employee where a medical provider or public health official has stated the presence of the family member in the community would jeopardize the health of others in the community because of exposure to the Coronavirus, or the exhibition of Coronavirus symptoms; or
- To care for a child whose school has closed or if the child-care provider is unavailable due to the public health emergency.
It is important to note that the employee must be able to demonstrate either exposure to the Coronavirus, or Coronavirus symptoms, to be eligible under the first two requirements. The declaration of a public health crisis by public health authorities is not enough. Otherwise, the employee must demonstrate that they cannot go to work because they must care for a child whose school has closed because of the Coronavirus outbreak.
To take leave based on a qualifying need related to a public health emergency, the employee must provide the employer with reasonable notice where practicable before taking leave. Written notice is advisable. Although FMLA leave for reasons not related to the Act is without pay, the Act provides full time pay for the first 2 weeks of leave and then 2/3 pay for the remaining 10 weeks of leave.
Restoration After Leave
An employee that takes leave because of a qualifying need related to a public health emergency is entitled to restoration to their position after the leave period ends unless the employer has less than 25 employees and economic conditions stemming from the Coronavirus have eradicated the position. If that is the case, the employer must make reasonable efforts to immediately place the employee in an equivalent position, and if that is not possible, the employer must make reasonable efforts, for a period of 1 year, to restore the employee to an equivalent position if an equivalent position becomes available.
If an employer violates any of the expanded FMLA protections contained within the Act, the employer is liable to an eligible employee for damages equal to twice the amount of lost wages, salary, benefits or other compensation, with interest, plus reasonable attorney fees and costs. The eligible employee may also be entitled to reinstatement of their position or even promotion, depending on the facts of the case.
The current public health crisis caused by the Coronavirus outbreak is unprecedented. Congress has passed emergency measures designed specifically to help workers affected by the outbreak. It is especially important that employees learn the new rules and be mindful of the fact that public health and safety is the national priority. As is always the case, there are some employers who, for whatever reason, will not follow rules designed for the collective good. Employees must assert their rights when dealing with non-compliant employers for the health and safety of all.