By Dan Doolin, Jun 11, 2020
Expanded Family and Medical Leave Act (E-FMLA) Simplified
The Families First Coronavirus Response Act (FFCRA) consists of two components: the Paid Sick Leave Act and the Expanded Family and Medical Leave Act (E-FMLA). Integrity Data’s COVID-19 Response Task Force has researched and summarized the E-FLMA. We will summarize the important points established by guidance of the U.S. Department of Labor FAQs.*
E-FMLA does not extend normal FMLA
It’s important to understand the E-FMLA does not extend normal FMLA. Rather, it simply alters your payroll department the reason you can take FMLA, and makes it paid leave instead of unpaid leave in certain circumstances. Specifically, the E-FMLA takes the normal unpaid 12 week period of FMLA and changes it so that the first 2 weeks are unpaid followed by 10 weeks of paid leave.
The intent is that the first 2 weeks of leave will be covered by the Paid Sick Leave provisions of the FFCRA and then the next 10 weeks will be covered by E-FMLA, ensuring an unbroken period of some form of paid leave.
Under FFCRA, the restrictions on taking the 10 week E-FMLA paid leave are tighter than those for the first 2 weeks of Paid Sick Leave. To qualify for taking E-FMLA, one of the following reasons must apply:
- Caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Caring for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or
- Experiencing any other substantially-similar condition** that may arise, as specified by the Secretary of Health and Human Services.
The above are often listed in blogs or FAQs as reasons 4-6 of the qualifying events for Paid Sick Leave, so note that when looking for references on that topic.
** The term “substantially-similar condition” has yet to be defined by Health and Human Services (HHS) as of the time of the above cited guidance. It will be addressed by DOL when HHS defines it but until then there is no such condition available.
E-FMLA weekly hours and pay rate details
The hours of leave an employee is eligible to take:
The hours of leave available per week follow the same set of rules outlined for the Paid Sick Leave portion of the FFCRA. See more details about hours in our blog, “Microsoft Dynamics GP and Comprehensive Leave Manager Strategies for FFCRA Paid Sick Leave Act.”
The rate of pay for the leave:
Again, the same rate of pay rules apply to E-FMLA leave as they do to the Paid Sick Leave portion, except as applied to E-FMLA, you only receive 2/3 of this pay rate; namely the greater of:
- your regular rate of pay,
- the federal minimum wage in effect under the FLSA, or
- the applicable State or local minimum wage.
Limits on the compensation for the ten week period:
- There is a daily cap of $200 for E-FMLA leave
- There is an aggregate cap of $10,000 for the total ten-week, paid FMLA period
E-FMLA points of interest outlined by the Department of Labor
– E-FMLA is available only to employees that have been employed for 30 days prior to when leave would begin.
– E-FMLA can be taken in conjunction with Paid Sick Leave (used for the first two weeks) as outlined in FFCRA.
– E-FMLA began April 1, 2020 and is not retroactive.
– You need to provide records and information when documenting your request for E-FMLA leave. This may include the government entity that issued any quarantine order to you or your family members, as well as medical certifications as to conditions. All existing certification requirements under normal FMLA remain applicable.
– Teleworking is not considered E-FMLA leave and is not compensated as such. It is normal work that takes place under special arrangement with the employer.
– If you cannot telework at all, due to the reason cited above, then you can apply for E-FMLA.
– You may, under arrangement with an employer, be able to have a combination of telework and intermittent leave (see FAQ #20 in DOL guidelines).*
– E-FMLA does not apply if the employer closes business or furloughs an employee; this falls under unemployment.
– E-FMLA does not apply if the employer reduces working hours.
– E-FMLA should not affect our eligibility for group health coverage under your employer (See FAQ# 30 for information on this).*
– Any normal FMLA already taken will reduce the amount of E-FMLA you can take, if it’s with the 12 month period defined for your FMLA.
– If the employee does not want to take the first two weeks as FFCRA Paid Sick Leave, then they can take it as unpaid or use their company’s Paid Time Off (PTO) hours. This decision is up to the employee for the E-FMLA situations.
General provisions for employers
– Leave provisions are for between April 1 – December 31, 2020
– You are required to provide leave if you employ fewer than 500 employees. That definition is tricky however, and includes employees that are:
Full time
Part time
Employed in any of the 50 United States, Washington D.C. or US Territories
Temporary employees that are jointly employed by you and another entity
Employees who are on some form of leave
Day laborers supplied by a temp agency
– Clearly the list can grow pretty quickly so be cautious in the determination. Workers classified as Independent contractors under FLSA are NOT included in the above determination.
– You can petition for an exemption to requirement to provide leave if you have fewer than 50 employees and can prove it is a burden, which would jeopardize your viability as a going concern. More regulation forthcoming to cover that process, but FAQ# 59* addresses some of it.
– Multi-employer and Collective Bargaining issues are covered in FAQ #35-37*
– If you pay employee more than required under E-FMLA there is not tax credit for that portion. Tax credits may be covered in subsequent guidance.
– E-FMLA is currently in a “stay of enforcement period” from March 18-April 17th 2020 and thus, not being enforced until after April 17, 2020. Thereafter DOL may enforce violations of the act.
– Further definitions of terms (e.g. “place of care”, “child care provider”, “employee”) can be found in the DOL guidance. In addition, there are answers covering common topics surrounding quarantines and isolation orders. Exemptions for Health Care workers and guidance on public sector employees can also be found in the referenced guidance (FAQ # 50 and higher)* and is beyond the scope of this summary.
Additional E-FMLA Resources
*U.S. Department of Labor FAQs: Families First Coronavirus Response Act: Questions and Answers
Integrity Data’s COVID-19 Response Task Force have been keeping up with all of the latest information and providing guidance to our customers along the way. Stay informed by following our COVID-19 blogs and follow us on social media.
