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Emergency Family Medical Leave Expansion Act

UPDATE: A new Policy Bulletin has been issued to clarify the effects of a recent federal court decision on the types of leave available under the Federal Emergency Paid Sick Leave Act (“FEPSLA”) and the Emergency Family and Medical Leave Act (“EFMLA”), both of which are parts of the Families First Coronavirus Act (“FFCRA”). Please pay particular attention to the following:

  • As of August 3, 2020, employees may intermittently use FEPSLA and EFMLA to care for a minor child whose school or place of care is closed, or the child care provided is unavailable, because of reasons related to COVID-19 that are set forth in Category 5 of the Policy Bulletin 2020-01 (April 2020).
  • As of August 3, 2020, agencies may exempt from these laws “health care providers,” as defined by the Family and Medical Leave Act (“FMLA”). Please note that the definition of a “health care provider” has changed for purposes of FEPSA and EFMLA since the issuance of Policy Bulletin 2020-01 (April 2020). Agencies should not follow the definition in the regulations originally promulgated by the U.S. Department of Labor under the FFCRA; rather, you should use the definition set forth in the attached Policy Bulletin.
  • Agencies may exempt from these laws “emergency responders,” as defined in the FFCRA and/or the regulations promulgated thereunder and as set forth in the attached Policy Bulletin.
  • Agencies are no longer required to receive approval before exempting these employees (i.e., the newly-defined “health care providers” and “emergency responders”) from these laws.

The federal Family and Medical Leave Act (FMLA) was revised to expand benefits for employees impacted by COVID-19. These new Emergency FMLA (EFMLA) benefits are in effect April 1, 2020. The changes are a temporary expansion of benefits and will expire on December 31, 2020. The revisions modify current FMLA eligibility provisions and provide a new category of approved leave: public health emergency leave related to the COVID-19 pandemic. This leave is available to eligible employees who must take leave to care for their minor children because the school or place of care for their children has been closed due to the COVID-19 public health emergency. The law also provides paid leave requirements for employers.

This memorandum provides a brief overview of the revisions to the FMLA. Agencies are cautioned that provisions of the FMLA must be applied in the context of State leave policy, consistent with the Attendance Rules and negotiated agreements.

The information contained in this document summarizes our current understanding of the revisions to the FMLA related to COVID-19. Further guidance may be provided as issues are clarified.

Eligibility

The FMLA eligibility criteria for employees impacted by the COVID-19 public health emergency has been substantially expanded. Employees absent due to the COVID-19 are only required to have worked for New York State for a period of 30 calendar days. The requirement of one cumulative year of State service and 1,250 hours prior to the qualifying event does not apply to absences for the public health emergency leave related to COVID-19.

All employees meeting the 30-day requirement are entitled to the EFMLA benefits described below, regardless of their eligibility for Attendance Rules coverage (i.e., hourly and per diem employees). It should be noted that the normal FMLA eligibility criteria still applies to all other conditions for which an employee seeks FMLA.

Amount of Leave to be Granted

Eligible employees are entitled to 12 work weeks of public health emergency leave from April 1, 2020 through December 31, 2020. Any FMLA an employee used prior to April 1, 2020, for reasons other than those related to COVID-19, is subtracted from this additional 12 weeks of EFMLA Leave. This new period of FMLA does not provide an additional 12 weeks of leave entitlement, but rather provides a new qualifying reason for which leave can be taken. Employees are still limited to a total of 12 week of FMLA for 2020.

Eligible employees are now allowed to take leave due to a qualifying need related to the COVID-19 public health emergency. The EFMLA defines a public health emergency as a COVID-19 emergency declared by a federal, state, or local authority.

The only qualifying need is that the employee is unable to work or telework because the employee is needed to care for the employee’s minor child under age 18 due to an elementary or secondary school or place of care closure, or due to the unavailability of a child care provider, because of a COVID-19 public health emergency. Employees who have a child, age 18 or older, who is incapable of self-care because of a mental or physical disability shall be eligible for public health emergency leave.

Pay During Leave

The first 10 days of COVID-19 public health emergency leave may be unpaid, although employees have the option to substitute any type of available paid leave (i.e., FEPSLA, vacation, personal leave, or sick leave). The Federal Emergency Sick Leave may run concurrently with this 10-day period.

After the first 10 days, the employee is entitled to be paid for the leave. Under normal circumstances, the leave is paid at two-thirds of the employee’s regular rate of pay multiplied by the number of hours the employee would normally be scheduled to work. The amount of paid leave is capped at $200 a day, but may not exceed a total of $10,000. For employees who work variable hours, the employer should calculate the average number of hours the employee was scheduled to work for the six-month period prior to the date the leave begins, including hours for which the employee took leave of any type (e.g., vacation, sick leave, etc.). If the employee works variable hours, but has not worked for the employer for 6 months, the employer must use the average number of hours the employee reasonably would have been expected to work at the time of hire.

COVID-19 public health emergency leave shall be used in full day increments only.

Intersection of FEPSLA and EFMLA

Employees taking paid sick leave because they are unable to work or telework due to a need for leave because they (1) are subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self (precautionary)-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, will receive for each applicable hour the greater of:

  • Their regular rate of pay;
  • The federal minimum wage in effect under the FLSA; or
  • The applicable State or local minimum wage.

In these circumstances, an employee is entitled to a maximum of $511 per day, or $5,110 total over the entire 2-week paid sick leave period.

An employee is entitled to compensation at two-thirds of the greater of the amounts above if the employee is taking paid sick leave because they are: (1) caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self (precautionary)-quarantine due to concerns related to COVID-19; (2) caring for their child whose school or place of care is closed, or because their childcare provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services.

Under these circumstances, the employee is subject to a maximum of $200 per day, or $2,000 over the entire 2-week period.

If the employee is taking EFMLA, they may take paid sick leave for the first 10 days of that leave period, or they may substitute any accrued vacation leave, personal leave, or sick leave available under State policy. For the following 10 weeks, they will be paid for their leave at an amount no less than two-thirds of their regular rate of pay for the hours they would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, the employee will not receive more than $200 per day or $12,000 for the 12 weeks that include both paid sick leave and EFMLA when the employee is 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.

It should be noted that employees cannot use existing leave entitlements (e.g., sick leave, vacation, or personal leave) to supplement their pay while using FEPSLA or EFMLA COVID-19 public health emergency leave.

Documentation

An employee must submit appropriate documentation to support the use of public health emergency leave to the extent practicable.

Return to Work

An employee must be restored to the same or a substantially equivalent position.

Notice Requirements

An employee who needs COVID-19 public health emergency leave is required to provide the employer with as much notice as is practicable.