March 26th, 2020



By:  Heather Rooney McBride

Dear Employer:

             On March 18, 2020, President Trump signed into law the EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT, which provides that the threshold for FMLA with respect to COVID-19 leave is no longer employers with more than 50 employees, but, rather, all employers with 500 or fewer employees.  The emergency law addresses leave under two main categories:

              Expanded FMLA 

              Employers with fewer than 500 employees must provide up to 12 weeks of job-protected FMLA leave for “a qualifying need related to a public health emergency” to employees who have been on the payroll for 30 calendar days.  This “qualifying need” is limited to circumstances where an employee is unable to work (or telework) due to a need to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency.  The first 10 days of FMLA leave can be unpaid;  an employee can opt to substitute accrued vacation, personal, or sick leave during this time, but an employer may not require an employee to do so.  The remaining 10 weeks of FMLA leave is required to be paid, generally at two-thirds of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work.  The Expansion Act limits the amount of required pay to no more than $200 per day and $10,000 in the aggregate.

Emergency FMLA leave taken is generally job-protected, meaning you must restore employees to their prior positions (or an equivalent) upon the expiration of their need for leave.  The Expansion Act includes an exception to this requirement for employers with fewer than 25 employees, if the employee’s position no longer exists following leave due to operational changes occasioned by a public health emergency. 

              Emergency Sick Leave

              Employers with fewer than 500 employees are also now legally required to provide paid sick time to any employee – regardless of how long the employee has or has not been on payroll – who is unable to work (or telework) because of any one or more of the following:

(1) the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

(2) the employee has been advised by a health care provider to self-quarantine because of COVID-19;

(3) the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;

(4) the employee is caring for an individual subject or advised to quarantine or self-isolate;

(5) the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or

(6) the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.  Unlike the emergency FMLA requirements, an employee is immediately eligible for this leave (there is no 30-day-on-payroll requirement).

              In general, full-time employees are entitled to 80 hours of paid sick time, and part-time employees are entitled to the typical number of hours they are scheduled to work in a two-week period.  The Expansion Act limits an employer’s requirement of paid leave to $511 per day ($5,110 in the aggregate) where leave is taken for reasons (1), (2), and (3) noted above (generally, an employee’s own illness or quarantine), and $200 per day ($2,000 in the aggregate) where leave is taken for reasons (4), (5), or (6) (care for others or school closures).  Failure to pay the required leave will be treated by the Department of Labor as a failure to pay your employees minimum wage. 

              Although it is at present unclear how extensively exemptions will be granted, the Expansion Act permits the Secretary of Labor to exempt small businesses with fewer than 50 employees from the requirement to provide paid sick leave for care for child if school or place of care closed, or child care provider is unavailable, due to coronavirus precautions doing so jeopardizes the viability of a business as a going concern. 

              Employers who are required to provide leave pursuant to the Expansion Act will be eligible for tax credits, and you should consult your CPA to discuss the extent of those credits.  Also, if you have questions about how to go about counting your employees for purposes of an FMLA analysis, including but not limited to a review of subsidiary entities and/or multi-site employee locations, please contact us.

              Finally, if you would like to discuss applying for a “less than 50 employees” exemption for the requirement of paid sick leave, or if in the future you need to discuss a “less than 25 employees” exemption for restoration of an employee to a prior position due to emergency-related reductions in work force, please contact me.

              If you have specific questions relative to your business or wish to discuss memorandum further, please contact Heather Rooney McBride at Rooney McBride & Smith to schedule a conference.