Making Sense of FFCRA : Emergency Family + Medical Leave
Posted on April 01 2020
Being pregnant during this public health crisis is nerve wracking. Pregnant mommas already go above and beyond to ensure that they and their baby are healthy, but to have to be environment where no safety precautions are being taken can give the term "momma bear" a whole new meaning.
Some employers are still not allowing their employees to work from home, and women who are expecting are more susceptible to sickness due to their body changes. Thankfully, the government has put something in place that will hopefully help those employers finally sway to the other side.
The Familie First Coronavirus Response Act (FFCRA) is an economic stimulus plan that expands the current Family and Medical Leave Act.
It can be a little overwhelming, so I've broken it up in smaller pieces for better understanding.
Okay, this is the nitty gritty of the Act. It’s important to understand as much as possible to ensure that employer won’t be able to wiggle their way out. As an employee for a state agency I can guarantee you that every business has been notified of the changes, and if they haven’t feel free to refer them here.
“The Act amends the Family and Medical Leave Act of 1993 (FMLA) to provide an additional qualifying reason for leave. The Act provides that eligible employees for FMLA leave includes employees that are unable to work (or telework) due to a need for leave to care for the employee’s son or daughter under 18years of age if the school or place of care has been closed or the childcare provider is unavailable due to a public health emergency (i.e., COVID-19). “
Great news! This statement just means that the amendment to the original FMLA now adds an extra reason to qualify. That reason is for eligible employees who cannot work from home or work at all because they have to take care of their children due to school closures.
“To be an eligible employee, the employee must have been employed for at least 30 calendar days by the employer. An eligible employer that is required to provide this leave is a private employer with fewer than 500 employees. However, public agencies must comply no matter what size. “
In order to be eligible, you had to have been working for your employer for 30 days and they must have less than 500 employees.
“The employee’s first ten days of leave due to a public health emergency may be unpaid. The employee may elect to substitute accrued paid leave for the unpaid leave. The employee’s leave will be paid leave after the first ten days. “
Okay so let’s break this down a little bit. You have to be out 10 days. Those 10 days can either be paid leave, in which you will have to use sick or vacation time you may have, or unpaid if you don’t have any days to use to cover those 10 days. Regardless, after those initial 10 days, whether they were paid or not, you will go on paid leave through the FFCRA (Families First Coronavirus Response Act).
“After the first ten days, the employee receives two-thirds of the employee’s regular pay for the remaining period of leave based on the number of hours the employee would otherwise be normally scheduled to work. If an employer is unable to determine the number of hours the employee would have worked, the employer would use the average number of hours (including any periods of leave) that the employee was scheduled per day over the six-month period preceding the leave. If the employee did not work during this six-month period, the employer would use the reasonable expectation of the average number of hours the employee would normally be scheduled to work. Paid leave cannot exceed $200 per day and $10,000 in the aggregate. “
How much money you receive depends on how long you’ll be out after those 10 days. So if you are out 22 days you’ll receive pay for 12. You will get two-thirds of your regular pay for those 12 days based on the number of hours you would have regularly worked.
If you have fluctuating hours, your employer will take the average amount of hours you worked the past 6 months. If you did not work in the past 6 months your employer would reasonable decide the average number of hours the employee would be scheduled to work.
“Where necessity for leave due to a public health emergency is foreseeable, the employee must provide the employer with notice of the need for leave as soon as practicable. “
Be sure to let your employer know that you’ll be taking a leave as soon as you can.
The job reinstatement rights that apply when an employee returns from leave under traditional FMLA leave apply to leaves taken due to public health emergencies except that an employer with fewer than 25 employees may be excused from reinstating an employee’s position if the following conditions apply:
- The position held by the employee when the leave began does not exist due to economic conditions or other changes in operating conditions of the employer
- The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave began, with equivalent employment benefits, pay, and other terms and conditions of employment
- If the reasonable efforts to restore the employee to an equivalent position fail, the employer must make reasonable efforts to contact the employee if an equivalent position becomes available within a one-year period beginning on the earlier of the date on which the reason for the leave due to public health emergency ends or 12 weeks after the date on which the public health emergency leave begins.
If you employer has more than 25 employees then they must provide you with a position that is equivalent that to the position you had prior to your leave.
For employers that have less than 25 employees they have to try to contact you within a year if an equivalent position comes available. They must also try to restore you to your original position or something similar. There is also the possibility that the position will no longer exist upon your return and they will not be able restore your position.
“An employer that has employees who are health care providers or emergency responders may elect to exclude these employees from eligibility for the leave due to a public health emergency. Also, the Department of Labor (DOL) may exclude certain health care providers or emergency responders from eligibility for leave due to a public health emergency. The DOL may also exempt certain employers with fewer than 50 employees from providing leave due to a public health emergency if the requirements would jeopardize the viability of the employer.”
Unfortunately, if you are a healthcare worker or emergency responder it is up to your employer to decide eligibility due to the public health emergency. Which means they have left enough room out of the Act to not include the people on the front lines due to the high demand.