Since 1993, the federal Family and Medical Leave Act (FMLA) has provided job protection to eligible employees who need to take time away from work for specific reasons related to their own health, to care for ill family members, or in connection with the birth and care of the employee’s newborn child. Many states have their own versions of the FMLA that generally overlap with, but can also differ from, the federal FMLA in certain respects. If leave is taken for a reason that is covered under both state and federal FMLAs, the employee is eligible for leave under both statutes, and the employee has available leave left under both laws, then the leave periods run concurrently. In addition, employers often allow employees time away from work for reasons that may or may not be covered under the leave laws. Coordinating and tracking absences taken for these varying purposes can be a daunting task in ordinary times.
And these are most certainly not ordinary times. The COVID-19 pandemic and the response to it have disrupted normal working conditions and resulted in a new world in terms of workplace attendance. Congress recognized as much when it passed the Families First Coronavirus Relief Act (FFCRA), which contained the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. As described more fully in our prior alerts on these topics (here and here), the two components of the FFCRA provide income replacement and job protection for certain COVID-19-related events. Some of the circumstances covered by the two FFCRA laws would have been covered by the traditional federal FMLA and its state counterparts, but the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act also cover circumstances that would have fallen through the cracks in preexisting leave laws.
Employers need to keep track of an employee’s use of statutory leave time in order to know what available time the employee has left. An employer may voluntarily provide employees with additional leave time beyond statutory entitlements, and in this environment many will, but tracking available time remains important. In order for an employer to properly track the amount of protected leave time an employee has under various statutes, the employer needs to look closely at the circumstances of the employer and the employee, and the reasons for the leave.
A primary determinant of coverage under the traditional FMLA, the FFCRA, and state FMLA laws is the size of the employer. For employers with fewer than 50 employees, the traditional FMLA does not apply, while the FFCRA does apply. On the other side, employers with more than 500 employees are covered by traditional FMLA but are not covered by the FFCRA, and therefore nothing has changed for these employers in terms of tracking FMLA. For purposes of the interaction of the traditional FMLA and the FFCRA, those employers with more than 50 but fewer than 500 employees must be meticulous in how they track time away from work in order to properly comply with these laws.
State FMLA laws have their own size requirements. California, Hawai’i, Minnesota, Oregon, New Jersey, Rhode Island, Washington state, and Wisconsin track the traditional federal FMLA requirement of 50 or more employees for coverage. Connecticut’s FMLA currently applies to employers with 75 or more employees. The District of Columbia’s FMLA applies to employers with 20 or more employees, while the Maine and Vermont versions of the FMLA apply to employers with 15 or more employees. Employers that have operations in these states and are covered by the state law need to separately track leave for employees under these laws.
Under the traditional FMLA, employees are not eligible for leave unless they (i) have worked for the employer for 12 months, (ii) have worked at least 1,250 hours in the preceding 12 months, and (iii) work at a work site that has 50 or more employees within a 75-mile radius. The FFCRA’s Emergency Paid Sick Leave Act applies to all employees, regardless of length of service, while the FFCRA’s Emergency Family and Medical Leave Expansion Act applies to employees who have worked for the employer for at least 30 calendar days. Therefore, there may be times when individual employees are eligible for one form of time off and not another. In such cases, the time taken by the employee counts only against the leave entitlement for which the employee is eligible.
State FMLAs have their own rules with regard to employee eligibility, with some states (e.g., Hawai’i and Oregon) making employees eligible with shorter tenure of employment, while others use the amount of work done in the relevant period preceding the leave. Connecticut, New Jersey, Wisconsin, and the District of Columbia require 1,000 hours; Washington state requires 820 hours; Rhode Island and Vermont require an average of 30 hours per week; and Oregon requires an average of at least 25 hours per week. Covered employers in these states must determine whether the individual employee seeking leave qualifies for the state leave.
For each employee taking time away from work for COVID-19-related reasons, the employer should determine whether the employee is also absent for an event that qualifies for traditional FMLA leave and for leave under a relevant state FMLA. If it does, then the employer should follow its traditional FMLA documentation procedures and count the time against the employee’s 12-week entitlement under federal law.
A careful examination of the reasons for Emergency Paid Sick Leave compared with the reasons for traditional FMLA leave reveals the following areas of overlap:
For leave taken under the Emergency Family and Medical Expansion Act, moreover, there is an additional consideration that arises from the fact that the law is in place only from April 1 through December 31, 2020, and involves reimbursement by the federal government. Under the traditional FMLA, an employer may choose the 12-month period applicable to the leave using (i) a calendar year; (ii) any other fixed 12-month period; (iii) the 12-month period measured from the employee’s first day of leave; or (iv) a “rolling” 12-month period measured backward from the date the employee first uses any FMLA leave. Under the Emergency Family and Medical Leave Expansion Act, however, an employee may take a maximum of 12 weeks of Expanded Family and Medical Leave during the period from April 1 to December 31, 2020. Therefore, if an employer has designated a 12-month period beginning July 1 each year, for example, then an employee would be entitled to take 12 weeks of traditional FMLA during April, May, and June 2020, and then on July 1, 2020, the employee would have 12 more weeks’ leave available, totaling 24 weeks. Under the Emergency Family and Medical Leave Expansion Act, however, no more than 12 weeks of that leave could be taken as Expanded FMLA leave.
Employers should, as always, make and maintain good records concerning employee use of various leaves of absence and separately calculate the use by each employee of each type of leave, noting when they run concurrently and when, for one reason or another, they run separately. If during 2020 an employer believes that an employee is running out of any type of state or federal mandated leave, it makes sense to discuss the particulars of the situation with experienced labor and employment counsel.