The EFMLEA requires employers to provide expanded paid family and medical leave to eligible employees who are unable to work because the employee is caring for his or her son or daughter whose school or place of care is closed or whose child care provider is unavailable due to a public health emergency, defined as an emergency with respect to COVID–19, declared by a Federal, State, or local authority.
The EFMLEA applies to different sets of employers and employees from the other provisions of the FMLA. Private employers with fewer than 500 employees must comply with the EFMLEA, although the Secretary has the authority to exempt by rulemaking employers with fewer than 50 employees from EFMLEA’s requirements when compliance with the EFMLEA would ‘‘jeopardize the viability of the business as a going concern.’’
The EFMLEA applies to employees of covered employers if such employees have been employed by the employer for at least 30 calendar days. This includes employees who were laid off or otherwise terminated on or after March 1, 2020, had worked for the employer for at least thirty of the prior 60 calendar days, and were subsequently rehired or otherwise reemployed by the same employer. As with the EPSLA, employers may, however, exclude employees who are health care providers or emergency responders from taking expanded family and medical leave, and similarly, the Secretary has the authority to exclude by rulemaking ‘‘certain health care providers and emergency responders’’ from the requirements of the EFMLEA.
An employee is entitled to take up to twelve weeks of leave for the purpose described in the EFMLEA. The first two weeks (usually ten workdays) of this leave are unpaid, though an employee may substitute paid sick leave under the EPSLA or paid leave under the employer’s preexisting policies for these two weeks of unpaid leave. Unlike FMLA leave taken for other reasons, the following period of up to ten weeks of expanded family and medical leave must be paid. Specifically, after the first two weeks of leave, expanded family and medical leave under the FFCRA must be paid at two-thirds the employee’s regular rate of pay. For each day of leave, the employee receives compensation based on the number of hours he or she would otherwise be normally scheduled to work, although special rules may apply to employees with varying schedules.
An eligible employee may elect to use, or an employer may require that an employee use, such expanded family and medical leave concurrently with any leave offered under the employer’s policies that would be available for the employee to take to care for his or her child, such as vacation or personal leave or paid time off. The total EFMLEA payment per employee for this ten-week period is capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA.
The EFMLEA provides that if the need for expanded family and medical leave is foreseeable, employees shall provide employers with notice of the leave as soon as practicable. The EFMLEA defines conditions under which employees who take leave are entitled to be restored to their positions, while exempting employers with fewer than twenty-five employees from this requirement under certain circumstances.
The EFMLEA permits, but does not require, employers who are signatories to multiemployer collective bargaining agreements to fulfill their obligations under the EFMLEA by making contributions to a multiemployer fund, plan, or program, subject to certain requirements.