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How the Coronavirus has Changed the Workplace: Employment Rights and FMLA Leave

Nearly every day, we are getting new updates on how the Coronavirus continues to change our day-to-day lives. Safety guidelines in the community and workplace are rapidly changing and it can be difficult to keep track of the most up to date information. Even worse, many of the recent guidelines are ambiguous and leave many employees confused about what it means for them.

Here we will review some of the recent changes as of March 23, 2020, and what these changes might mean for employers and employees.

Prior to the Coronavirus outbreak, changes in sick leave guidelines have been slow. However, recent developments during the Coronavirus outbreak have caused rapid changes in what types of sick leave are available, who they apply to, and the types of compensation an employer must provide. For more information about coronavirus and the effect on your workplace contact our Covid 19 attorneys today.

Congress Has Changed the Qualifications for FMLA

The Family and Medical Leave Act of 1993 (“FMLA”) is a United States labor law requiring covered employers to provide employees with job-protection and unpaid leave for qualified medical and family reasons. FMLA applies only to qualified employers and qualified employees.

FMLA Qualified Employers

Coronavirus and Workers Rights

Coronavirus and workers rights

An employer that employs 50 or more employees within a 75-mile radius of the worksite.

Private sector employers are required to employ 50 or more employees within a 75-mile radius each working day during the preceding calendar year for FMLA eligibility. On the other hand, public agencies (such as state and federal governments) are not held to the “50 employee” rule, and most federal employees are eligible for FMLA. In general, all public agencies, and all local, state, and federal employers are qualified for FMLA, regardless of the number of employees.

Even if employees at a company’s headquarters are eligible for FMLA, employees at a smaller, remote location might not be eligible if the smaller location does not include at least 50 employees within the 75-mile radius.

FMLA Qualified Employees

Even if an employee works for an FMLA qualified employer, they must independently be an FMLA qualified employee. To qualify, the employee must have worked for the employer for at least 12 months, have 1,250 hours of service, and have a qualifying reason to take FMLA leave.

12-Months of Employment

To qualify for FMLA, an employee’s 12 months of employment need not be consecutive. However, breaks in service of seven years or more are not counted toward an employee’s years of service unless the break was based on an employee’s military obligations or written agreement.

1,250 Hours of Service

For purposes of determining FMLA eligibility, “hours of service” means hours that the employee has actually worked. This does not include vacations, holidays, sick days, or other situations where an employee was away from work (whether paid or unpaid). In addition, the 1,250-hour requirement must be met within the 12-month period before the start of leave.

Qualifying Reason

FMLA applies only for qualified medical and family reasons. These include:

  • to take medical leave when the employee is unable to work because of a serious health condition;
  • the birth of a son or daughter, and to bond with the newborn child;
  • the placement with the employee of a child for adoption or foster care, and to bond with that child;
  • to care for an immediate family member (spouse, child, or parent—but not a parent “in-law”) with a serious health condition; or
  • for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.

The most common use is for when an employee or immediate family member has a serious health condition. A serious health condition is more than simply an illness. Serious health conditions include:

  • conditions requiring an overnight stay in a hospital or other medical care facility;
  • conditions that incapacitate you or your family member (for example, being unable to work or attend school) for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication);
  • chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and
  • pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).

While an employer is not allowed to ask you details about what your serious health condition is, they can require that you provide a doctor’s note confirming that you or a family member has a serious health condition. The employer must allow the employee at least 15 calendar days to obtain the medical certification.

An employee is not required to give an employer his or her medical records. The employer, however, does have a statutory right to request that an employee provide medical certification containing sufficient medical facts to establish that a serious health condition exists.

What FMLA Provides

Eligible employees are entitled to 12 weeks of protective leave.

12 Weeks of Leave

The 12 weeks of leave can be taken in 12 consecutive weeks. However, employees can also take them throughout a 12 month period. For example, an employee can take a qualified leave for 2 weeks in June, 2 weeks in August, and 8 weeks in October through November.

The 12 weeks can also be used in what is called “intermittent leave.” This means the 12 weeks of leave can be taken one day at a time, or even for several hours a day. For example, an employee may be diagnosed with a migraine disorder in which a doctor certifies they may be unable to work 2 days a week. This would allow an employee to take covered FMLA leave whenever a migraine occurs so long as the total amount of time taken is still no more than 12 weeks.

Employees can also qualify for a regular reduced schedule. For example, an employee can reduce the number of hours worked to 6 hours a day instead of 8.

Protected Leave

Protected leave means that an employee’s job position is secure and they cannot be terminated for using their FMLA leave.

Employers must also maintain group health benefits for their employees. This means there is no interruption of coverage and is maintained as though the employee had kept working their regularly scheduled hours.

Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave. This means employees cannot be demoted or put in a less desirable position because they took FMLA leave.

Changes to FMLA in Response to the Coronavirus (COVID-19)

On March 18, 2020, the United States Senate passed new legislation temporarily expanding the scope of FMLA. This was called the Families First Coronavirus Response Act. Passed as part of the relief package for the COVID-19 pandemic, this legislation is designed to allow employees more flexibility in who qualifies to use FMLA, qualifying reasons to use FMLA, and the relief offered by FMLA.

The COVID-19 Response Package Expands the Definition of Covered Employers

The Families First Coronavirus Response Act (“Act”) temporarily expends the definition of a covered employer under FMLA. The FMLA expansion is covered by Division C of the bill, entitled the “Emergency Family and Medical Leave Expansion Act.”

The requirement that employers have at least 50 employees is temporarily removed. Now, FMLA applies to any employer with less than 500 employees.

However, the Act specifically contemplates that some employers will still be exempt. The Secretary of Labor has discretion to exclude healthcare providers and emergency responders from the definition of qualifying employers. The Secretary of Labor can also exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business. It is unclear how or if the Secretary will apply this discretion.

Additionally, the Act excludes employers that employ fewer than 25 employees from the job-protected aspect of the emergency FMLA leave provided a specific set of conditions are met, including if a leave-taking employee’s position is eliminated due to “economic conditions” or other changes that affect the employer’s operations resulting from the public health emergency.

The COVID-19 Response Package Expands the Definition of Covered Employees

Previously, employees must have worked for 12 months, and 1,250 hours to be eligible for FMLA leave. Under the new Act, any employee who has been employed by the employer for 30 days is qualified. The requirement for a number of hours worked in those 30 days also appears to be temporality stayed.

The COVID-19 Response Package Expands the Covered Reasons for Taking Leave

The Act now allows for parents to take FMLA leave if they are unable to work, work remotely, or telework due to the need to care for their children. Qualifying individuals:

  • Are unable to work or work remotely due to the need to provide childcare;
  • Have a son or daughter who is under 18 years of age;
  • The school or previously-used childcare provider for that child is unavailable due to a public health emergency.

In short, parents of children who have had their schools shut down during the Coronavirus crisis can qualify for FMLA leave. Here, the “public health emergency” is specifically defined as being limited to “an emergency with respect to COVID-19 declared by Federal, State, or local authority.

The COVID-19 Response Package Provides for Paid Leave

Previously, all FMLA leave was considered unpaid. This means that while employers were obligated to provide up to 12 weeks of leave for qualified employees, the employers were not required to provide any salary or wages during this time.

Under the Act, employers are now required to provide at least some paid leave. This includes a new calculation which will vary the amount of paid time-off an employee may be eligible to receive. The amount of paid leave available is calculated as follows:

  • The first 10 days of FMLA leave taken related to the Public Health Crisis can still be unpaid;
  • For the first 10 days of FMLA leave taken related to the Public Health Crisis, employees “may elect to substitute any accrued vacation leave, personal leave, medical leave, or sick leave available.” However, an employer cannot require employees to use these accounts;
  • Leave taken after the first 10 days will be paid at least two-thirds (2/3) of an employee’s regular rate of pay, with the employer paying for the same number of hours as those normally worked;
  • However, IN NO EVENT SHALL PAID LEAVE EXCEED $200 per day or $10,000 in total.

Thus, after the first 10 days, most employees can be expected to see paychecks that are two-thirds (2/3) of their regular paychecks until they have received a total amount of $10,000 in benefits.

For an employee who regularly works for the federal minimum wage 40 hours a week, their pay under the Act would be as follows:

  • The employee’s first ten days of leave would be unpaid;
  • After ten days, the employee would be paid a gross amount of $191.40 per week (2/3 of $290);
  • The employee would receive $191.40 per week for the remainder of the FMLA leave, up to 12 weeks total.

An employee who regularly works 40 hours a week at the San Diego minimum wage ($13.00/hr) would be paid as follows:

  • The employee’s first ten days would be unpaid;
  • After ten days, the employee would be paid a gross amount of $343.20 per week (2/3 of $520);
  • The employee would receive $343.20 per week for the remainder of the FMLA leave, up to 12 weeks total

A similar calculation applies for salaried employees. For example, a salaried employee who earns $70,000/year, would be compensated as follows:

  • The employee’s first ten days would be unpaid;
  • After ten days, the employee would be paid a gross amount of $888.46 per week (at $70,000 a year, their weekly salary is $1,346.15. This figure is 2/3rds of $1,346.15.);

The employee would receive $888.46 for the remainder of the FMLA leave. At this rate, the employee can earn this wage for 11 weeks without going over the maximum.

Your Rights Under the New FMLA Law

Congress has amended FMLA in the hope of providing more relief, additional pay, and more readily accessible leave for Americans. However, it is up the employers of the United States to enact these changes, and to act quickly.

At Gomez Trial Attorneys, we know that there will be many employers who will fail to follow the revised guidelines in the Act. Gomez Trial Attorneys expects many employees will still be denied leave, fail to be paid according to the new guidelines, or face wrongful and retaliatory termination for seeking these benefits. To learn more about coronavirus and business shutdowns check out our blog about coronavirus business interruption insurance.

Gomez Trial Attorneys’ award-winning lawyers are the very best in the business. Our attorneys have extensive experience litigating for our clients, and advocating for their rights. If you or someone you know believe an employer has violated the law, please contact an employment law attorney right away.


Gomez Trial Attorneys
655 West Broadway, Suite 1700
San Diego, CA 92101
Phone: (619)-237-3490

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