FAQ: Emergency Family and Medical Leave Expansion Act

The EFMLEA amends the FMLA to provide for paid leave for childcare needs related to the coronavirus public health emergency for up to 12 weeks leave. It is only available to employees who are unable to work due to the need to care for a son or daughter4 if the school or child-care has closed or is unavailable due to the public health emergency related to the coronavirus. This may be taken intermittently if both the employer and employee agree.

All public employers (except most federal employees), as well as private employers with fewer than 500 employees. Employees must be employed for 30 days to be eligible for this leave, which is much shorter than the 12 months required for FMLA.⁵

⁵ _{The Secretary of Labor may, for good cause, issue regulations that exclude certain health care providers and emergency responders. In guidance (regulations have not issued yet), the DOL includes as potentially part of that exemption anyone employed at a health care center, clinic, post-secondary educational institution offering health care instruction, medical school, pharmacy, and any facility performing laboratory or medical testing.}

The first 10 days are unpaid under this provision; however, employees may elect to utilize accrued leave or emergency paid sick leave for these first 2 weeks. Employees may take up to 12 weeks total under the EFMLEA.

After the first 10 days, employees are entitled to not less than 2/3 their regular rate of pay (based on the number of hours normally scheduled to work), up to a maximum of
$200 per day, capped at $10,000 total benefit.

Because the FFCRA does not diminish other rights or benefits, employees may supplement EFMLEA with accrued paid leave under existing CBAs or policies to attain normal earnings for the period of EFMLEA.

No, the FFCRA does not expand the overall amount of FMLA leave available, just the covered reason for leave is expanded as set forth above. The total amount of leave in a 12-month period under the FMLA remains 12 weeks.

Yes, if the need for leave is foreseeable, employees must provide notice as practicable.

No, EFMLEA is only available for a qualifying reason set forth above. However, prorated EFMLEA leave may be available when the reduction in hours is not due to a lack of work but because a coronavirus-related reason prevents an employee from working a full schedule.

Yes, just like with FMLA, employees who take EFMLEA leave are entitled to return to the same or substantially equivalent position with equivalent benefits, pay, and other terms and conditions of employment.⁶

^{6 _{An employer with fewer than 25 employees may not have to restore an employee under the EFMLEA if that position no longer exists due to economic conditions or other operating conditions caused by the public health emergency. However, the employer must make a reasonable effort to restore the employee to an equivalent position or, if unavailable, then make reasonable efforts to contact the employee for a period of 1 year if an equivalent position become available.}}