FMLA is expanded to create an entirely new category of leave. Eligible employees will not be entitled to leave for a “qualifying need related to a public health emergency.” This is defined as leave to care for a minor son or daughter if their school or place of care has been closed or the childcare provider (defined as someone who receives compensation for providing childcare on a regular basis) is unavailable due to the coronavirus.  For clarity, in this document we will refer to this as “Public Health Emergency Leave.”

Notably, all of the new provisions under the FMLA expansion relate to Public Health Emergency Leave only, and not traditional FMLA leave.  In other words, the new rules or benefits contained in the FMLA expansion contained in the FFCRA do not apply to leave for an employee’s own serious health condition (e.g., COVID-19).

Employees who have been with an employer for “at least 30 calendar days” are eligible for Public Health Emergency Leave.  The traditional requirements of 12 months and 1,250 hours still apply to FMLA leave for other reasons.

The requirement to provide Public Health Emergency Leave applies to employers with fewer than 500 employees.

Eligible employees taking more than 10 days of Public Health Emergency Leave are entitled to compensation from their employer at 2/3 of their usual rate of pay for the remainder of their FMLA leave (i.e., weeks 3-12).  Employers’ payments under this provision are capped at $200/day or $10,000 in the aggregate.

The first 10 days of Public Health Emergency Leave need not be paid, but employees can elect to use PTO if they wish. Employers cannot require employees to use PTO for the first 10 days of Public Health Emergency Leave.

As has historically been the case with FMLA, employees using Public Health Emergency Leave will be entitled to reinstatement. There is a limited exception to this requirement for certain small employers (i.e., under 25 employees) if the employee’s position no longer exists.

The FFCRA provides payroll tax credits to employers who pay employees using Public Health Emergency Leave to offset the expense to the employer.

Employers of “an employee who is a health care provider or an emergency responder” are able to elect to exclude the employee from the provisions of the FMLA expansion act.  The DOL’s March 29 guidance clarified that “health care provider” is defined very broadly and includes “anyone employed at any…nursing facility, retirement facility, nursing home, home health provider…or any similar institution, employer or entity.”  Accordingly, an employer of any such person has the option of exempting him or her from eligibility for Public Health Emergency Leave.  Employers are also free to not exempt “health care providers.” If an employer chooses to make the benefits available to employees who are health care providers, the employer must have less than 500 employees to claim the tax benefit.

In addition, the Secretary of Labor would have authority to issue regulations that would exclude certain “health care providers and emergency responders” from the definition of “eligible employee” and also to exempt certain smaller employers (i.e., under 50 employees) if compliance would jeopardize the viability of the company.  Importantly, if an employer is excluded, it would not be eligible for the payroll tax credit provided under FFCRA.

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