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Family and Medical Leave during COVID-19 Outbreak: Emergency Family and Medical Leave Expansion Act (EFMLEA)

On March 18, 2020, a new law, the Families First Coronavirus Response Act (FFCRA) was passed to address the current pandemic situation caused by the COVID-19 outbreak. Shortly thereafter, on April 1, 2020, the U.S. Department of Labor (“DOL”) posted a temporary rule offering additional guidance on the new legislation.

One of the key aspects of this newly passed legislation is the temporary expansion (until the end of December 2020) of the Family and Medical Leave Act (FMLA) to cover leave and loss of income when an employee needs to care for children because of school and childcare closures due to COVID-19. This new amendment affecting the FMLA is named the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). Please note that if you opt to take EFMLEA leave, it must be taken between April 1, 2020, and December 31, 2020. The purpose of this article is to give you an idea about the EFMLEA and how it may apply to employees during this current pandemic situation.

What changes does EFMLEA bring to the FMLA?

The EFMLEA extends the scope of the FMLA temporarily, until the end of December 2020. Among other things, the amendment brings changes to the coverage, scope, eligibility criteria, and payment options during leave.

When can you take the EFMLEA leave?

Unlike the FMLA which enables you to take medical leave for yourself or to care for a family member, EFMLEA allows you to take leave when you only need to care for your children because of school and childcare closures due to COVID-19.

Who is a covered employer under the EFMLEA?

As for private employers, EFMLEA applies to companies that have fewer than 500 employees. Therefore, there is no minimum threshold for total number of employees (such as a minimum of 50 employees as mandated by the FMLA). The EFMLEA also applies to governmental agencies with the exception of most federal employees.

Are you eligible for leave under the EFMLEA?

EFMLEA temporarily extends the eligibility criteria of an employee as well. Now, it applies to any employee who has been employed for the 30 calendar days prior to the leave (including any time worked for the company as a temporary employee).

Is EFMLEA leave paid?

EFMLEA leave is both paid and unpaid. The first two weeks (which is usually the first 10 business days) of leave are unpaid. However, you may choose to utilize any earned or accrued paid leave during this first 2-week period. After the first two weeks, the EFMLEA offers paid leave for up to another 10 weeks (depending upon need and whether the employee has already exhausted some FMLA leave for other qualifying reasons).

How much can you get paid for an EFMLEA leave?

During the last 10 weeks of leave, you are entitled to two-thirds of your average pay rate. This amount will be capped at $200 per day and $10,000 total for the entire leave period.

I am a healthcare worker or an emergency responder. Am I eligible for an EFMLEA leave as well?

Under the EFMLEA, an employer whose employee is a health care provider or an emergency responder may elect to exclude such employee from the EFMLEA’s expanded family and medical leave requirements. However, the employer is not barred under the law from giving EFMLEA to healthcare providers and emergency responders. Therefore, it is always better to check with your employer regarding your eligibility.

If you believe that your employer has violated the FMLA, contact the O’Hara Law Firm. Romin Tamanna of the O’Hara Law firm has experience representing clients who have been discriminated against because of their race, ethnicity, gender, or religion. The O’Hara Law Firm represents clients on a contingency fee basis. Call us at 832-956-1138.

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