What you need to know about the Family Medical Leave Act 
(FMLA) and the Pandemic

By de Jesus Law Group

Jun 15
FMLA vs FFCRA for COVID

COVID 19 has complicated most things that have to do with business, and that includes the rules about granting sick leave to employees. You may already know about the Family Medical Leave Act (FMLA), but what you may not have heard is that on April 1st of this year, the federal government enacted another temporary rule just for COVID-19: The Families First Coronavirus Response Act (FFCRA). 

While there are many similarities, there are differences that adapt it to the situation we currently find ourselves in. Both the FMLA and FFCRA could be applicable to your workplace at the same time. While it’s nothing to tear your hair out over, it’s also important that you, as a business owner, know what your responsibilities are under both laws.

For the FMLA, the first thing to find out is whether you are a covered employer. Covered business owners have 50 or more employees that work 20 or more weeks within the current or previous year. That goes for joint employers as well as the successor to a previous employer, so if you recently acquired another company and haven’t changed anything substantial about the business, you would be covered.

If you are covered, you will need to provide eligible employees with up to 12 weeks of unpaid leave in one year, for a few specific reasons. Those are:

  • The birth and care of the employee's newborn child;
  • The care of their newly placed adopted or foster child;
  • Care for an immediate family member (spouse, child, or parent) with a serious health condition; or,
  • The inability to work due to a serious health condition of their own.

Employees also have to meet some criteria to qualify for leave under the FMLA. Assuming you are a covered employer, they need to have been employed at your company for 12 months, and had 1,250 hours of service during the 12-month period immediately before they take the leave. When they return from leave, they’ll need to be restored to their original job, or an equivalent job at the same rate of pay, benefits, and other employment conditions.

If you’re a covered employer, be sure to post a notice that explains the rights and responsibilities under the FMLA, or you could be fined. It’s also wise to include information about FMLA, and how it relates to the way your company provides sick leave.

For FFCRA, covered employers are similar to those covered under FMLA, in that they have fewer than 500 employers, but there are some conditions that might make your business exempt. You might be able to get an exemption if you have fewer than 50 employees and the employee asks for leave because childcare isn’t available due to COVID-19. Also, you need to determine if one of three other conditions is met: providing sick leave would cause the business’s expenses to exceed its revenue; the employee’s not being there would pose a risk to the financial health because of their skills, knowledge, or duties; or, there’s no one else available to do the work that would keep your business functioning at minimal capacity.

Here are what the FFCRA covers, and the amount of leave time and pay that it makes available to employees who take it.

  • Two weeks of paid sick leave at the employee’s regular rate of pay when the employee cannot work due to being quarantined with COVID-19 symptoms, and seeking a diagnosis;
  • Two weeks of paid sick leave at two-thirds their regular rate of pay because they need to care for a quarantined person, or a child whose school or care provider is closed because of COVID-19;
  • Up to 10 additional weeks of paid expanded family and medical leave at two-thirds their regular rate of pay to care for a child whose school or care provider is closed because of COVID-19. For this one, they’ll have to had worked at your company for more than 30 days first.

So, what if you notice COVID symptoms in one of your employees? It’s a good idea to have a plan in place before that becomes an issue. In some cases, the leave could be FMLA-protected, and you can require them to use paid leave. You can also set up your own policy over whether employees can be sent home, as long as it isn’t discriminatory and doesn’t violate local laws. You can ask for a doctor’s note, but keep in mind that it may be difficult for them to get in the midst of a pandemic, when medical resources might be spread thin. (Of course, this also depends on whether there’s currently an outbreak where you live.)

If you are unsure of whether or not you are a covered employer for either the FMLA or FFCRA, we can help you make sense of how these laws apply to your business and how you can prepare to accommodate your employees, if necessary. 

We offer a complete spectrum of legal services for business owners and can help you make the wisest choices on how to deal with your business throughout life and in the event of your death. We also offer you a LIFT Your Life And Business Planning Session, which includes a review of all the legal, insurance, financial, and tax systems you need for your business. Schedule online today.