FFCRA FAQs on Emergency Family and Medical Leave Expansion Act

A provision of the Families First Coronavirus Response Act, the Emergency Family and Medical Leave Expansion Act provides workers up to 12 weeks of job-protected leave to care  for their children (under the age of 18) if their school is closed or other childcare is unavailable due to COVID-19 precautions. Effective April 1-December 31, 2020, this provision applies to employers with fewer than 500 employees. Workers are eligible for emergency family leave if they have been employed for at least 30 calendar days before taking leave. The first 10 days of leave may be unpaid; subsequent absences are paid at no less than 2/3 the rate of the employee's regular rate of pay, capped at $200/day and $10,000 total. Employers will be reimbursed for emergency family leave pay through tax credits. 


If I have fewer than 50 employees, does my company qualify for the Emergency Family and Medical Leave Expansion Act? 

Yes, the Emergency FMLA covers employers with fewer than 500 employees. For employees to qualify, they must have been employed for at least 30 calendar days and meet one of the qualifying reasons for the leave.  


Are there exceptions?

A small employer with fewer than 25 employees is not obligated to reinstate an employee at the end of his or her leave if the employee's position has been eliminated due to economic conditions or other changes in operating conditions of the employer caused by COVID-19, and the employer is unable to reinstate the employee to an equivalent position.


Can any employee take the emergency family leave?

No, employees who take leave under the Emergency FMLA must meet the following condition: They are caring for a child (under the age of 18) if the school or place of care for the child has been closed, or the childcare provider of the child is unavailable, due to COVID-19 precautions.


Does the employee get the full 12 weeks paid while on the emergency family leave? 

No, the first 10 days of emergency family leave may be unpaid, though an employee could choose to use accrued vacation days, personal leave, or other available paid leave for unpaid time off.


Does the employee earn their full rate of pay while out on emergency family leave

The first 10 days of emergency family medical leave can be unpaid; subsequent absences are then paid at no less than 2/3 the employee's regular rate of pay. Emergency FMLA pay is capped at $200 per day and $10,000 in total. 

The employee will be paid for leave at an amount no less than 2/3 of their regular rate of pay for hours they would be normally scheduled to work. This amount must be at or above the minimum wage requirement. However, employees will not receive more than $200 per day or $12,000 for the twelve weeks that include both emergency paid sick leave and expanded family and medical leave when they are on leave to care for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.


How do I count hours worked by a part-time employee for purposes of Emergency FMLA pay? 

A part-time employee is entitled to leave for their average number of work hours in a pay period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. 

If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of their employment.


What if an employee has been out before April 1st due to COVID-19 related leave?

Emergency FMLA pay is not retroactive. FFCRA applies to leave taken between April 1, 2020 and December 31, 2020. Employees would need to use the Colorado Help Emergency Rule (if applicable), or employee could choose to use accrued vacation days, personal leave, or other available paid leave for unpaid time off.


What is the difference between "traditional" FMLA and Emergency FMLA? 

Traditional FMLA provides non-paid leave and only applies to employers with more than 50 employees. While both offer job-protected leave, Emergency FMLA will be paid if such leave is under the FFCRA, which exceeds 10 days, and is applicable to employers with fewer than 500 employees.


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Disclaimer: This information is provided as a self-help tool and does not constitute legal or financial advice. Laws, regulations and lending products are changing daily and decisions as to whether or how to use this information and/or what actions to take in response to the COVID19 Pandemic are solely those of the employer. The providers of this information disclaim any and all responsibility and liability for its accuracy, completeness or fitness for your particular business purposes.

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