COVID-19: Dramatic Proposed Changes to the FMLA

By Rebecca A. Winterscheidt

The Senate is expected to vote on an emergency bill early this week that will, among other things, dramatically expand the Family and Medical Leave Act (FMLA) both in terms of coverage and mandating paid leave. Late last week the House of Representatives passed HB 6201 entitled “Families First Coronavirus Response Act." Section 3101 of that bill, “Emergency Family and Medical Leave Expansion Act," calls for its provisions to be effective through December 31, 2020.

The key provisions of HB 6201 include the following:

• All companies who employ fewer than 500 employees will be subject to the Act. The current definition of “employer” under the FMLA covers only those companies with  50 or more employees. 
• Companies with fewer than 50 employees could qualify for exemption by the Department of Labor if compliance would jeopardize the viability of the business as an ongoing concern.
• Employees will be eligible for this emergency FMLA leave if they have been employed by their company for at least 30 calendar days. Currently, employees are not eligible for FMLA leave until they have worked for their employer for at least one year and completed 1,250 hours of service within the prior 12-month period.
• The Department of Labor will also have the authority to issue regulations that exclude from the definition of “eligible employee” certain health care providers and emergency responders.
• The emergency leave will be available if the employee has a qualifying need related to a public health emergency.  An employee would meet this standard if the employee requested leave under any of the following circumstances:
  • To comply with a recommendation or order by a public official that:
    • The physical presence of the employee on the job would jeopardize the health of others; and
    • The employee is unable to both perform the functions of the employee’s position and still comply with the  recommendation or order by the public official. 
  • To care for a family member of an eligible employee if a public official or health care provider determines that the presence of the family member in the community would jeopardize the health of others in the community. The definition of “family member” has also expanded.
  • To care for the employee’s son or daughter under 18 years of age if the school (elementary or secondary) or place of care has been closed, or the child care provider is unavailable due to a public health emergency.
• The first 14 days of this emergency FMLA leave could be unpaid. An employee may, but cannot be required to, substitute any accrued vacation, personal, medical or sick leave for this period of unpaid FMLA leave.
• Emergency FMLA leave that continues beyond 14 days must be paid at not less than two-thirds of an employee’s regular rate of pay as determined under the Fair Labor Standards Act.
• HB 6201 also contains a provision granting tax credits to offset the costs of providing the paid FMLA leave.

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