COVID-19 Resource Center

April 22, 2020

COVID-19: Expanded FMLA Only Applies to Childcare

The Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.  Under the Expanded Family and Medical Leave Act, covered employers with fewer than 500 employees must provide employees that have been employed for at least 30 days up to an additional 10 weeks of paid expanded FMLA at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Some employers are confused by the many competing statutes and regulations and are consequently misapplying benefits.  Specifically, employers must remember that the six criteria for eligibility for Emergency Paid Sick Leave do not apply to criteria for eligibility for Expanded Paid Family and Medical Leave under the FFCRA.

If the employee is out on paid sick leave and exhausts their accumulated time off, and the leave is for the purpose of child care due to COVID-19 implications, employers may transition to Expanded Family and Medical Leave Act.  That transition should be considered, deliberate and documented to confirm purpose and eligibility for both parties.

If an employee takes Emergency Paid Sick Leave for personal illness, quarantine and or the care of another family member, traditional FMLA may apply.  Traditional FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees.  Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more within 75 miles.  Employers must provide an eligible employee with up to 12 weeks of unpaid leave each year who is sick or whose family members are sick.  This may include the flu where complications arise that create a serious health condition.

Employers must understand and consider the basic requirements of each statutory regulation.  Certainly, employers may offer benefits above and beyond the base requirements of each regulation.  However, in most cases employers are struggling to provide even the minimum requirements.  To this end, they must understand eligibility requirements – where coverage begins and ends.  They should consider other avenues for benefit application such as Short-Term Disability Benefits or Unemployment Compensation Benefits.

When in doubt, please contact our Employment Law Group at 1-888-488-2638 for guided counseling to avoid unnecessary mistakes.