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Description of Program and Relief
Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act (the “EFMLEA”) requires certain employers to provide their employees with paid, job-protected leave for up to twelve weeks in connection with qualified family caregiving needs. The intended beneficiaries of the Act are individuals who meet the requisite eligibility requirements (described below) and who work for, and have been employed for at least 30 calendar days by: (1) private employers with fewer than 500 employees, or (2) government employers.
Government or Lead Agency
The Department of Labor, specifically the Wage and Hour Division, is the agency responsible for overseeing the Act.
The requirement to give employees paid leave under this Act takes effect on no later than April 2, 2020. The right to paid leave under this act expires on December 31, 2020.
Government Employers & Private Employers With Fewer than 500 Employees
Government employers and private employers with fewer than 500 employees must provide this leave to any employee employed for at least 30 days. An employee is eligible for leave under the EFMLEA if they are unable to work or telework in order to care for their minor and/or disabled child if the child’s school or place of care has been closed, or if the child’s childcare provider is unavailable, due to coronavirus.
The first two weeks of EFMLEA leave may be unpaid, but employees may use emergency paid sick leave, as conferred by the Emergency Paid Sick Leave Act (the “EPSLA”), to receive paid leave paid at the employee’s regular rate during this time.
Subsequently, employees are entitled to receive a benefit from their employers equal to no less than two-thirds (2/3) of the employee’s usual pay for up to 10 additional weeks. Crucially, this paid leave benefit is capped at $200 per day and $10,000 in the aggregate, and a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA.
Multi-Employer Collective Bargaining Agreements
Employees who work under a multi-employer collective bargaining agreement are entitled to paid leave without additional or different requirements.
Small Businesses Employing Fewer than 50 Employees
Employees of small businesses employing fewer than 50 employees may in some circumstances be denied the benefits otherwise conferred under the EFMLEA. On April 1, 2020, the U.S. Department of Labor announced the promulgation of temporary regulations to supplement the EFMLEA, to take effect on April 2. In pertinent part, the Department issued the following criteria under which small businesses may be exempted from the requirement to provide leave under the EFMLEA:
if such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
if the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
if the small employer cannot find enough employee(s) who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee(s) requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.
If any one of these criteria are met, a small business has broad latitude to deny paid family leave to an otherwise eligible employee.
Businesses Employing 500 or More Employees
The Act is unenforceable by employees of businesses employing 500 or more employees. Employees of companies of such scale must seek paid leave benefits from their employers directly.
Employers Employing Health Care Providers or Emergency Responders
An employer may elect to exclude employees who are health care providers or emergency responders from obtaining the benefits otherwise conferred under this Act.
© 2020 Paul, Weiss, Rifkind, Wharton & Garrison LLP. This does not constitute legal advice and does not create an attorney-client relationship. In some jurisdictions, this publication may be considered attorney advertising. Past representations are no guarantee of future outcomes.