Someone, Please Explain FMLA [+ Free Employee Communication Template]

Put everything you thought you knew about sick leave policies on hold. Congress passed new rules to regulate businesses and accommodate workers battling the coronavirus. Employers must adhere to the Families First Coronavirus Response Act (FFCRA) in addition to the Family Medical Leave Act (FMLA) rules.  

These rules are in effect right now. All employers are legally obligated to share these rights with employees by Tuesday, April 7. Are you concerned about communicating the rules? We created a coronavirus employee communication template to make your life easier. Download a copy of the template here.

Do you have time to read the entire bill? Probably not. We have heard and seen rumors about the rules. So, we broke down some of the facts to help businesses and their employees understand the key points. 

Myth 1: The Families First Coronavirus Response Act only applies to small businesses. 

The FFCRA applies to private sector employees that work for companies with fewer than 500 full and part-time employees. Employees are eligible for up to two weeks of fully or partially paid sick leave for COVID-19 related issues. However, according to employment attorney Brian Barger of McGuireWoods LLP, “the Secretary of Labor has authority to issue regulations that exclude small businesses with fewer than 50 employees if the Act’s requirements would jeopardize the viability of the business as a going concern.”  

It is also important to note a key difference between this stipulation and typical FMLA rules. FFCRA applies to full and part-time W2 employees who have been employed for 30 calendar days or more. The FMLA regulations were much more stringent, requiring a minimum of 12 months of prior employment, among other things. 

Myth 2: Employees must show exhaustive proof of why they cannot work during the crisis.  

The allowances are broad. According to the Department of Labor, “an employee is entitled to take leave related to COVID-19 if the employee is unable to work, including unable to telework, because the employee:  

1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; 
2. has been advised by a health care provider to self-quarantine related to COVID-19;  
3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;  
4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2); 
5. is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or  
6. is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services."

Myth 3: Employers do not need to provide paid leave for COVID-19 related absences.  

Employers subject to the FFCRA must provide full-time employees with up to 12 weeks of job-protected paid FMLA leave. According to Barger, the first 10 days of leave may be unpaid, but employees can use banked vacation or sick days during this time. Employees are eligible to receive no less than two-thirds of their regular pay rate for the 12-week period. 

Myth 4: An employer may terminate an employee taking COVID-19 related leave. 

Just like FMLA, FFCRA protects employees’ jobs. Workers must return to the same or an equivalent job when they return to the office.  

However, employers with less than 25 employees may be exempt if they were forced to eliminate the job because of the pandemic. But the employer must demonstrate that they, “make reasonable efforts’ to restore the employee to an equivalent position with equivalent pay, benefits, etc., and if such efforts fail, notifies the affected employee if an equivalent position later becomes available during the defined ‘contact period’.” 

Myth 5: The FFCRA is no longer valid once the shelter in place orders end. 

The provisions last from April 1, 2020, through December 31, 2020.  

Stuff You Should Know 

Take these resources and suggestions back to your colleagues and leadership team:  

• Employers must post this poster from the Department of Labor around the office or distribute it virtually.  
• This is a concise summary of the emergency rules and regulations. If you want even more on the FFCRA, read this Q&A from the Department of Labor.  
• Always consult with legal counsel. Do not put yourself or your company at risk by ignoring these rules.  

Coronavirus has changed every aspect of work as we know it. As employees and employers, it is our responsibility to understand our rights. Stay healthy and safe and educate yourself.