COVID-19: DOL Clarifies EFMLA / FMLA Interplay

Bryan O'Neill, Dickinson Mackaman Tyler & Hagen PC

Employment & Labor

On March 28, 2020, the Department of Labor (“DOL”) released its expanded Questions and Answers guidance on implementation of the recently passed Families First Coronavirus Response Act (“FFCRA”), which enacted the Emergency Paid Sick Leave Act (“EPSL”) and the Emergency Family and Medical Leave Act (“EFMLA”). Included in the 59 questions answered, the DOL clarified that employees eligible for both FMLA and EFMLA are entitled to only a combined total of 12 workweeks of leave during a 12-month period — keeping in mind that EFMLA eligibility expires on December 31, 2020.

Under the FMLA, eligible employees are entitled to up to 12 workweeks of leave during a 12-month period. This leave is unpaid. Under the recently passed EFMLA, employees who have worked for an employer with less than 500 employees for the 30 days prior to the start of an EFMLA leave, are eligible for up to 12 workweeks of leave if the employee is unable to work or telework because they must care for a son or daughter due to the school being closed due to a public health emergency or the child care provider being unavailable due to a public health emergency. The first two workweeks of leave under EFMLA are unpaid. However, those two weeks could be paid under EPSL, if available, and if not available, the employee may choose to use other paid leave under existing company policies. The remaining 10 workweeks of EFMLA are paid at two-thirds of the employee’s regular rate of pay multiplied by the number of hours the employee normally would have been scheduled to work during the leave period. The pay, however, cannot exceed $200 per day and $10,000 for the total ten weeks ($12,000 when including EPSL). The most recent DOL guidance made clear, however, that the new EFMLA did not entitle eligible employees to an additional 12 workweeks of leave on top of that already provided by FMLA. The DOL provided the following example:

[A]ssume you take four weeks of Expanded Family and Medical Leave in April 2020 to care for your child whose school is closed due to a COVID-19 related reason. These four weeks count against your entitlement to 12 weeks of FMLA leave in a 12-month period. If you are eligible for preexisting FMLA leave and need to take such leave in August 2020 because you need surgery, you would be entitled to take up to eight weeks of FMLA leave.

Taking this example one-step further, if prior to April 1, 2020 (the effective date of EFMLA) an employee had exhausted all FMLA leave and would not again be eligible for leave until January 1, 2021, the employee would not be entitled to any EFMLA leave.

The DOL Guidance is a welcome confirmation of what we and other legal commentators assumed would be the case — that EFMLA is part of the regular FMLA 12 week limit and is not an additional 12 weeks. When it comes to interpreting the EFMLA, it is generally true that where the EFMLA legislation is silent on a matter, the regular FMLA speaks. 
 

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