Legal Alert: How Does FMLA and EFMLEA Apply to Leaves?

This alert was revised on April 10, 2020. 

The Department of Labor (DOL) has released several updates to their Families First Coronavirus Response Act Questions and Answers. Clarification was provided on how FMLA and EFMLEA apply to leaves and the 12-month period. A link to the Q&A is provided here and below.  While these issues are addressed throughout, this topic is specifically addressed starting with question #44.

Do I qualify for leave for a COVID-19 related reason even if I have already used some or all of my leave under the Family and Medical Leave Act (FMLA)?

If an employer was covered by FMLA prior to April 1, 2020, the amount of Emergency Family and Medical Leave Expansion Act (EFMLEA) available is 12 weeks total in a 12-month period. If you have already taken 12 weeks of FMLA in the 12-month period, you are not eligible for additional time under EFMLEA.

It is important to note that the Emergency Family and Medical Leave Expansion Act only applies when you are on leave to care for a child whose school or daycare is closed due to COVID-19 related reasons. This would fall to the EFMLEA and not under paid sick leave.

If you have already taken a portion of the 12 weeks that are available under FMLA, you may take the additional EFMLEA up to a maximum of 12 weeks in a 12-month period.

For example, if your employer is covered under the FMLA on April 1,2020, and you were eligible for a preexisting FMLA and you took two weeks of leave in January 2020 you would have 10 weeks available FMLA leave remaining. EFMLEA is a type of FMLA leave so you would have 10 weeks of EFMLA and not 12-weeks.

If you are entitled to paid sick leave under the Emergency Paid Sick Leave Act, you are entitled to it regardless of how much leave you have taken under FMLA, as paid sick leave is not a form of FMLA and does not count toward the 12 weeks in the 12 month period. If you take paid sick leave concurrently with the first two weeks of EFMLEA, which may be otherwise unpaid, then those two weeks do count toward the 12 weeks in the 12-month period.

Overlapping Leave Laws and Employer Paid Time Off

The Families First Coronavirus Response Act (FFCRA) prohibits employers from requiring an employee to exhaust accrued paid time off such as sick or vacation time or state/local paid sick leave. Employees are entitled to utilize federal emergency paid sick leave before using state or local paid sick leave or accrued employer offered PTO.

You should review any state-specific leaves that may have been implemented in response to COVID-19. The DOLs Q&A document can be found on their website and here.

New Certification/Paperwork Requirements

Traditional FMLA certification requirements remain in effect.

As noted above, the new Emergency Family and Medical Leave Extension Act (EFMLEA) coverage is only available if your child’s school or place of care is closed or your childcare provider is unavailable.  To request leave to care for your child, employees must provide to their employer the following:

• The name of your child;



• The name of the school, place of care, or childcare provider that has closed or become unavailable; and



• A statement that no other suitable person is available to care for your child.

The IRS assumes that children older than age 14 can care for themselves during daylight hours. If that is not the case, employees must provide a statement explaining the special circumstances that exist requiring them to care for the child.

Employers should maintain all records regarding EFMLEA leave for at least 4 years.

Not All Paid Leave Under FMLA Is Paid Leave

The only type of family and medical leave that is paid leave, is the EFMLEA. Regular FMLA leaves are still not paid leave unless the employee chooses to use accumulated sick leave or PTO.

The information contained herein should be understood to be general insurance brokerage information only and does not constitute advice for any particular situation or fact pattern and cannot be relied upon as such.  Statements concerning financial, regulatory or legal matters are based on general observations as an insurance broker and may not be relied upon as financial, regulatory or legal advice.  This document is owned by Alera Group, Inc., and its contents may not be reproduced, in whole or in part, without the written permission of Alera Group, Inc.