U.S. Creates "Emergency FMLA Leave" For Employees Caring for Children Due to COVID-19 Closures

Author: Gregg Mosson | | Categories: Attorney , Civil Litigation , Employment Law , Family Law , Lawyer , Legal Consultation

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As part of the U.S. national response to the COVID-19 medical pandemic, Congress passed an Emergency Family Medical Leave Expansion Act to permit up to 12 weeks of leave, a lot of it paid, for those who cannot work, due to caring for their children out of school, daycare, or for lack of child care, due to COVID19.

The E-FMLA applies to any employee who has worked for 30 or more calendar days at any company of "fewer than 500 employees." Emergency Family Medical Leave Expansion Act ("E-FMLA"), Section 110. 

However, smaller employers of 50 or less employees can seek exemptions, as discussed below.

The E-FMLA: What Is It?

The E-FMLA is a significant, though temporary expansion of the well-known FMLA.  It also is quite different, and targets the need to stay home without the ability to work to care for children.  It remains in effect only during 2020, unless Congress extends it.

The E-FMLA provides 10 days of unpaid leave for those needing to care of children due to COVID-19 closures.  Then, if the need for leave is longer, it requires employers pay 2/3rds of his or her regular earnings.  E-FMLA, Section 110(b).  

This provision will be a benefit to those ineligible for unemployment benefits.  Maryland, however, has expanded unemployment benefits as of March 19, 2020, to cover the same scenario.

The E-FMLA also defines work to include telework, E-FMLA Section 110(a)(2)(A)("unable to work (or telework)").  This means that if an employer discusses teleworking as an option, it is a lawful option for employment to continue, if feasible, and if onsite work is not possible.

Further, one's job should be secure while on E-FMLA Leave, though small employers of 25 or less employees can justify eliminating the position because of business changes, as specified.  Id., Section 110(d). 

E-FMLA also permits small employers of 50 or less to opt-out of the E-FMLA - if it will jeopardize "the viability of the business as a going concern."  Id., Section 110(a)(3)(B).

E-FMLA: April 1 to Dec. 31, 2020

The U.S. Department of Labor has clarified that the law took effect on April 1, 2020.  This means that one must be employed on April 1 and beyond to access its benefit.

It lasts by the terms of the law itself through Dec. 31, 2020.  Then it expires.

See E-FMLA, Section 102(a)(1)(F); U.S. DOL, W&H Div., "Families First Coronavirus Response Act: Questions and Answers," Question 1 (undated) (click here for link).

Other Facts About the E-FMLA:

The E-FMLA was passed as Section C of The Families First Coronavirus Response Act, House Bill "HR 6201."  It was signed into law on March 18, 2020, according to news reports.

While the FMLA provides for civil lawsuits to enforce its rights, this more expansive E-FMLA shields employers of less than 50 employees from any private civil lawsuits, under FMLA Section 107(a).  See E-FMLA, Section 3104.

However, an employee who believes they have been wrongfully denied its benefit can seek legal advice and representation.  Further, that employee can file a complaint with the U.S. Department of Labor about any legal violation pursuant to FMLA Section 107(b), which also applies to the E-FMLA.  See id., Section 3104.

Further, emergency responders and healthcare professionals involve specific E-FMLA regulations not discussed here.

The E-FMLA does limit its paid benefit to $200 daily or less, and $10,000 total under Section 110(b)(2)(B)(ii) as amended.

In conclusion, the E-FMLA provides temporary protected leave and some regular wage payments to those who cannot work or telework, due to caring for their children out of school, daycare, or for lack of child care, due to COVID19.

Gregg H. Mosson, Esq.

Mosson Law, LLC