Small employers now need to learn about FMLA administration

The Families First Coronavirus Response Act (FFCRA), which goes into effect April 1, 2020, expands the definitions of eligible employee and covered employer under the federal Family and Medical Leave Act (FMLA) in a way that will affect employers who previously were too small to be covered by the FMLA. Prior to the expansion, an employer had to employ at least 50 employees to be covered under the FMLA.

The FFCRA added a new category of leave with different eligibility requirements called emergency (or expanded) family and medical leave (EFMLA). EFMLA applies until December 31, 2020:

• To employers with fewer than 500 employees; and
• To employees who have worked for the employer at least 30 days.

Employers with fewer than 50 employees don’t have to suddenly start providing traditional FMLA leave; they only have to provide leave (which must be paid) for one reason under the new EFMLA, which is effective through December 31, 2020. Specifically, employees are eligible for EFMLA leave when they’re unable to work or telework because they have to care for a child whose school or child care has been closed (or whose child care provider is unavailable) due to a public health emergency declared by government officials related to COVID-19 (coronavirus). For more information about EFMLA leave, see our earlier alert on this topic.

A limited exception to the law for some small businesses with fewer than 50 employees may be available. The U.S. Department of Labor (DOL) has authority to issue regulations to exempt these employers if providing EFMLA leave would “jeopardize the viability of the business as a going concern.” The DOL hasn’t yet issued regulations, but Vigilant will keep members updated.

Tips For Employers: The bottom line is that smaller employers with no prior experience with the FMLA will need to become familiar with the law and the required paperwork. Check out our Legal Guides, At a Glance: Family and Medical Leave Act (FMLA) and FMLA: Qualifying Events and Notice Requirements to familiarize yourself with the basics of how to administer FMLA leave. Please contact your Vigilant Law Group employment attorney if you have questions after reviewing the resources listed here.