Search

Legal Update

August 2020


Kenneth Alan Totz, DO, JD, FACEP

Family and Medical Leave Act (FMLA) Then & Now

With the current coronavirus chaos that has gripped our communities, you may be compelled to take some time off to address personal, family, or health related matters. I’d like to provide my medical and non-medical colleagues with a brief practical overview of the FMLA Law (FMLA) and the Families First Coronavirus Response Act (FFCRA), in the event some time away from work becomes necessary. Many states like Texas, where I live, do not have a “state” FMLA law, so the federal law applies in this situation.count_upIn general, though, state laws tend to align themselves with the Federal FMLA law. Additionally, independent contractors (IC), which has become a decreasingly prevalent employment designation in emergency medicine, are not eligible for FMLA benefits.

FMLA:
The FMLA was the first major piece of legislation President Clinton signed into law in 1993. FMLA was designed to allow certain eligible employees to take unpaid leave for certain medical and family reasons. FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. Employers must provide eligible employees with up to 12 weeks of unpaid leave each year for any of the following reasons: 1

  • The birth and care of the newborn child of an employee; or
  • The employee has received a child via adoption or foster care; or
  • To care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • To take medical leave when the employee is unable to work because of a serious health condition.

Employees are eligible for FMLA leave if they have:

  • Worked for their covered employer at least 12 months (consecutive or non-consecutive); and
  • Worked for their covered employer at least 1,250 hours over the past 12 months immediately preceding the leave; and
  • Work at a location where the company employees 50 or more employees within 75 miles

Leave entitlement:

  • Eligible employees may take up to 12 workweeks of leave in a 12-month period
  • Leave can be all at once or intermittent (i.e. 2-3 hours at a time). Intermittent leave goes toward the 12-week limit.
  • A company must allow FMLA leave for an employee where it is warranted.

FFCRA:
On April 1, 2020 the U.S. Department of Labor announced guidance on how American employees can receive relief offered by the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, which are both part of the FFCRA. FFCRA provides tax credit reimbursements to private employers with fewer than 500 employees with paid leave taken for specified reasons related COVID-19. The law enables employers to keep their workers on their payrolls, while ensuring workers are not forced to choose between coming to work and the public health measures needed to combat the virus. The FFCRA is set to expire December 31, 2020. Under the FFCRA, certain employers are required to provide up to 80 hours of paid sick leave for certain specified reasons related to COVID-19. The vast majority of employees will fall under one or more of the following qualifications for leave:2

Qualifying reasons for leave include the following:

  1. The employee or someone the employee is caring forcount_upis subject to a governmental quarantine order or has been advised by a health care provider to self-quarantine; or
  2. The employee is experiencing COVID-19 symptoms and is seeking medical attention; or
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis; or
  4. The employee is caring for their son or daughter whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.

Eligible duration of leave:

  • For elements numbers 1-3 above, a full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a 2 week period.
  • For element number 4 above, a full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medicalcount_upleave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of pay:

  • Employees taking leave under numbers 1-3 above are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511/day and $5,110 in the aggregate over a 2 week period.
  • Employees taking leave under number 4 above, are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200/day and $12,000 in the aggregate over a 12 week period.

Kenneth Alan Totz, DO, JD, FACEP

No information within this publication should be construed as medical or legal advice. Independent medical and/or legal advice should be sought based on each individual’s particular circumstances.

1 Family and Medical Leave Act. https://www.dol.gov/agencies/whd/fmla. Last viewed 5/25/2020.

2 Families First Coronavirus Response Act: Employee Paid Leave Rights. https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave. Last viewed 6/3/2020.