President Trump Signs into Law a Massive Expansion of the FMLA

On March 18, 2020, President Trump signed into law the Emergency Families First Coronavirus Response Act (the “Act”). The Act will take effect no later than 15-days from March 18, 2020 and will remain in effect for a one-year period from the date of enactment. The Act greatly expands the Family Medical Leave Act (“FMLA”). The Act now covers all employers with less than 500 employees. Those employers employing in excess of 500 employees are not legally obligated to provide the benefits enumerated under the Act.

The Act requires that employers allow employees that have been employed for at least thirty days to take up to twelve weeks of job protected leave due to any of the following qualifying events:

  • To adhere to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus; or
  • To care for an at-risk family member who must quarantine due to exposure to or symptoms of coronavirus; or
  • To care for a child of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a coronavirus

If one of these qualifying events occurs, the employer is not obligated to pay the employee for the first two weeks of leave. However, if the employee has accrued or unused personal time, vacation days, or sick leave—the employee may apply those benefits during these first two weeks. After the two weeks lapse, the employer must compensate the employee at 2/3 their normal compensation (subject to exceptions for highly compensated individuals). During the leave provided for by the Act, the employee will retain all employment benefits from their employer. Generally, employers will file for tax credits to recoup the compensation paid to employees on leave.

Notably, employees that take the leave will not accrue any seniority or employment benefits during the period of leave.

Employers must also allow the employee to return to either their previous position or an analogous position after the employee is ready to return from leave.  If the employer employs less than 25 employees, the employer can be exempt from this obligation if:

  • The employee takes the leave; and
  • The position that the employee served in no longer exists due to economic conditions or other changes in the operating conditions of the employer; and
  • The employer makes reasonable efforts to restore the employee to a position equivalent to the one the employee occupied before the leave commenced; and
  • The employer makes reasonable efforts to contact the employee in the event an equivalent position becomes available.

The Act is currently governing law. The State and Federal legislatures continue to draft legislation providing further relief to employers and their respective employees.

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