By Sarah Fisher
The Family and Medical Leave Act (FMLA) is a federal law designed to protect the jobs of workers who need to take a leave of absence, for specified reasons, of up to 12 weeks. In March Congress passed a law that expands those benefits for workers, provided the reason for taking a leave stems from the coronavirus pandemic. Learn who is affected by the newly amended law and what the expanded benefits are.
The FFCRA and FMLA
In March, President Trump signed the Families First Coronavirus Response Act (FFCRA), which took effect April 1 and which includes two distinct acts:
- The Emergency Family and Medical Leave Expansion Act (EFMLEA), which enhances FMLA benefits
- The Emergency Paid Sick Leave Act (EPSLA), which entitles certain employees to take up to two weeks of paid sick leave.
What follows is a survey of the enhanced FMLA benefits, which are set to expire Dec. 31, 2020. Unless the government takes legislative action, the FMLA’s pre-April 1 provisions will again be in force starting in 2021.
Who Does the FMLA Apply to?
Under the recently amended FMLA, employees are entitled to the 12 weeks of leave if the pandemic has forced the closure of their minor child’s school or daycare facility. The same applies for situations in which adult daycare facilities have had to close. The new benefits apply to employees who have worked for the employers for at least 30 days.
Before the FMLA was amended, an employee could only access its benefits if he or she had worked for a qualifying employer for at least 12 months, and 1,250 or more hours over the past 12 months to be eligible.
The amended law applies to governmental schools and agencies, though some federal employees may be excluded from the amended FMLA and some federal employees may be excluded from the EPSLA. As for private companies, the new laws apply only to employers with fewer than 500 employees. This includes employers that have fewer than 50 employees. Small employers with fewer than 50 employees may qualify for an exemption from the requirement to provide paid leave due to school, place of care, or child care provider closings or unavailability, if the leave payments would jeopardize the viability of their business as a going concern.
Before the FMLA was amended, all public agencies and public and private elementary and secondary schools were subject to the FMLA. Companies with 50 or more employees were also subject to FMLA rules, provided those employees worked within 75 miles of each other for at least 20 workweeks during the current or previous year.
What the FMLA Offers
The newly amended FMLA provides employees with up to two weeks of paid sick leave when the employee is quarantined because of the pandemic. It also provides up to two weeks at two-thirds the employee’s regular rate of pay when the employee is unable to work because of a bona fide need to care for an individual subject to quarantine.
Finally, the newly amended FMLA provides for up to an additional 10 weeks of paid expanded family and medical leave 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 childcare provider is closed or unavailable for reasons related to COVID-19.
Before the FMLA was amended, the 12 weeks of leave were unpaid.
When to Use the FMLA
In general, the enhanced FMLA benefits apply whenever the reason for the leave is pandemic related. When the reason for the leave is not pandemic related, FMLA benefits are applicable for any of the following reasons:
- You need to deal with a serious health condition affecting you
- You need to care for a family member with a serious health condition
- Caring for a minor child because of a public health emergency forced the closure of a school or daycare facility
- Childbirth and bonding with a newborn
- A child has just been placed with you for adoption or foster care
- Specific reasons related to certain military deployments
Only immediate family members are covered under the FMLA, such as your spouse, child, or parent. Care for children over 18 is only covered if the child has a serious disability that makes them “incapable of self-care.”
The law doesn’t require you to show proof of the reason you requested leave. However, employers are permitted to ask for medical certification of the condition from a healthcare provider. If your supervisor asks you for this medical certification, you usually have 15 calendar days to provide that proof. The Department of Labor also states that employers are permitted to contact the healthcare provider to ask for clarification or authentication of the health issue. You do not have to provide medical records, just some form of medical certification.
If you accrue paid leave on the job, you may be able to use that paid leave while on FMLA leave. Though FMLA leave is not paid, it is sometimes possible to use your vacation days and sick days, or other types of paid leave, concurrently with your FMLA leave. Certain employers may require you to use up your paid leave time before you can take FMLA leave. Ask your company’s human resources department what their policies are before making a decision. Your employer is not required to offer you any type of pay or paid leave under FMLA.
Job and Salary Protection
Your healthcare benefits will be available to you while you are on FMLA leave. While the FMLA requires that you be reinstated after your leave, you won’t necessarily get the same job when you come back. According to the Department of Labor, “An employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits and other terms and conditions of employment.”
Ideally you’ll be offered your original job back, with the same benefits and paycheck. If you aren’t offered your job back, your employer is legally required to offer you a job with equivalent pay and benefits. That means if your employer tries to cut your pay or demote you when you come back, they are breaking the law. Your employer is also not allowed to use this leave as a reason to avoid promoting you or fire you.
If you were eligible for a bonus before you took FMLA leave, your employer cannot use FMLA leave as a reason to deny you your bonus. However, the time you took on FMLA doesn’t have to be counted towards a bonus, accrual of benefits or seniority.
If your employer violates the terms of the FMLA, don’t hesitate to complain. Employers are not permitted to fire you for alleging a violation of the FMLA.
On the other hand, if you would have lost your job regardless of your FMLA leave, you can be terminated before, during or after your leave. You may also be laid off if your company is laying people off, as long as you were not chosen because you were on FMLA leave.
If you are eligible for FMLA leave and comply with FMLA notice and certification requirements, your employer is not permitted to refuse your leave request.
As long as you provide medical certification, your employer cannot cut your leave short, or request you come back to work. That includes your employer offering light or part-time work.
Your employer may have rules about outside employment that you will have to follow during FMLA, but your employer generally cannot restrict other actions during your leave. However, employers may be able to terminate you for insubordination, fraud or other ordinarily prohibited conduct. This does not apply if you did not provide medical certification, lied about why you were taking leave or if the reason for the leave no longer exists.
The Bottom Line
The FFCRA grants American private employers that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons related to COVID-19. Further, by temporarily enhancing FMLA benefits, the FFCRA enables employees to keep their jobs so workers are not forced to choose between their paychecks and public health measures needed to combat the virus.
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