On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (Families First Act or FFCRA) into law which, among other things, amends the Family Medical Leave Act (FMLA) with the Emergency Family and Medical Leave Expansion Act (EFMLA). Here is what employers need to know about Public Health Emergency Leave (“PHEL”):

  • Employees must have been employed for 30 calendar days with the employer.
  • Applies to employers with LESS THAN 500 employees.  However, the DOL has the authority to issue regulations to exempt small businesses (less than 50 employees) when the imposition of EFMLA would jeopardize the viability of the business as a going concern, and certain health care providers and emergency responders.
  • Employee must have a “qualifying need related to a public health emergency”.
    • “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency [COVID_19].”
      • Child care provider must be someone who receives pay to take care of a child on a regular basis.
  • The first 10 days are unpaid.  Employees “may elect” to substitute any accrued vacation, PTO, personal leave, sick or medical leave for these 10 days.
    • Note, it does not state that employers may require use of PTO, etc.
  • After day 10, leave is paid after that at an amount “not less than” 2/3rds of an employee’s regular rate of pay (there are specifics in the Act on how to calculate for employees with varying hours).
    • Capped at $200/day and $10,000 in the aggregate per employee (which equals the employer tax credit).
    • Employers signatory to a multi-employer CBA may make contributions to a multiemployer fund, plan or program (read the Act for more info on this).
  • An employee of an employer with less than 25 employees who takes EFMLA does not need to be restored to their position if certain conditions are met (which is another blog for a later day).
  • Ends on December 31, 2020.
  • Employers who are not subject to the FMLA (under 50) cannot be sued by employees for violation of Emergency FMLA as they have no private right of action. However, the DOL may still investigate and sue on their behalf.

EFMLA is one of several in the Families First Act that will impact employers. See my other blogs for details regarding the Emergency Paid Sick Leave Act and Tax Credits for Paid Sick and Paid Family and Medical Leave.