Tell Me More – COVID-19 Emergency Family and Medical Leave Act

Last Updated on March 19, 2020

Emergency Family and Medical Leave Act

Know The Facts! A Helpful Q & A

As part of the “Families First Coronavirus Response Act”, the “Emergency Family and Medical Leave Expansion Act” (the “Act”) was passed.  The Act was passed to expand the Family Medical Leave Act to provide job protections and income to eligible employees that must take off to care for a minor child during a Public Health Emergency.

When Does the Act Become Effective?

The Effective date of the Act is April 2, 2020.

What is Public Health Emergency?

A Public Health Emergency is an emergency relating to COVID-19 that is declared by a Federal, State or local authority.

Who Has to Comply?

Under the Act, employers with fewer than 500 employees must provide emergency leave to employees that have been employed for at least 30 calendar days.  However, the Secretary of Labor does have the authority to exempt small businesses with fewer than 50 employees if compliance could potentially affect the company’s ability to remain, a going concern.

When Does the Act Apply?

A Qualifying Need that meets the requirement for an employee to become eligible under the Act occurs when an employee is unable to work (or telework) due to a need to care for a son or daughter under 18 years old due to a school or place of care closure.

A child care provider is defined as someone who received compensation for providing child care services on a regular basis.

How Does the Leave Work?

In general, the first 10 days the employee is on leave are unpaid. However, the employee is able to utilize their accrued vacation, personal or sick leave during this time. After the first 10 days, the employer must provide paid leave.

The paid leave must be not less than two-thirds of the employee’s regular rate of pay times the number of hours the employee would normally be scheduled to work. If the employee has a variable schedule and the employer is unable to determine the number of hours the employee would have worked, employee would use the following calculation to determine the hours:

  • Average number of hours the employee was scheduled over the 6-month period ending on the date on which the employee takes the leave (including any leave hours the employee took during that period).
  • If the employee did not work over the 6-month period, the employer should use the number of hours the employer reasonable expected the employee to work per day when they were hired.

However, in no event shall paid leave exceed $200 a day and $10,000 in the aggregate.

How Long Do I Have to Pay Emergency Leave?

The payment of Emergency Leave would begin on the 11th day and continue for the lesser of:

  • The conclusion of the Qualifying Need or
  • Twelve weeks from the commencement of the Emergency Leave

Will Employers Be Reimbursed for Paid Emergency Leave?

Yes. Employers can take a quarterly payroll tax credit to offset 100% of the qualified family leave wages paid in the quarter.

Does the Employee Have to Provide Notice?

When the need for the leave is foreseeable, the employee is required to provide notice as soon as practicable.

Does the Employer Have to Give the Employee Their Position Back?

Under the Act, an employee should receive a restoration of their position. However, if the employer has fewer than 25 employees the employer is not to required to restore the employee’s position if the following conditions are met:

  • The employee takes leave under the Act
  • The position held by the employee when the leave commenced does not exist due to economic conditions or changes in operating conditions that affect employment and are caused by the Public Health Emergency
  • The employer makes reasonable efforts to restore the employee to an equivalent position with equivalent pay, benefits, etc.
  • The employer makes a reasonable effort to contact the employee if an equivalent position becomes available for a period of 1 year beginning of the earlier of (1) the date the qualifying need concludes or (2) the date that is 12 weeks after the date on which the employee’s leave commences.

How Long Does the Act Last?

The Act expires December 31, 2020.

For more information regarding HR policies during the COVID-19 crisis, or other HR needs, contact MyHRConcierge at 1-855-538-6947 x.108 or email