Emergency Family and Medical Leave Expansion Act

Frequently Asked Questions

We continue to field a lot of questions about the Emergency Family and Medical Leave Expansion Act, which revises the Family Medical Leave Act (FMLA) to include free coronavirus testing, funding to ensure domestic nutrition assistance programs, and additional funding for state unemployment insurance programs. Below are some answers to some of the frequently asked questions we are receiving from clients. If you have additional questions, please contact us via our web form.

Click here to read our Coronavirus Response Act Info Sheet

Click here to read The Act (H.R. 6201)

Click here to read an overview from the U.S. Department of Labor's Wage and Hour Division

Family First Act (effective April 2), how is it applied between now and then? If they pay out wages now based on the Act, can they take the credit on the Q1 941?

Because the Act is not effective until April 2, employers should not consider any leave between now and then to be covered by the Act. Any leave taken between now and the effective date can be pursuant to the employer’s current leave policies (like PTO, etc.) Based on the information we currently have available to us, the Act will not apply retroactively, so any leave provided before April 2 will not be subject to reimbursement. One big caveat is that the government could come out with additional guidance on the Act between now and April 2, which might change things. But currently, any leave an employee takes between now and April 2 is not covered by the new Act.

Does sick leave apply to this stay-at-home order? Or does it only apply if the individual is required to isolate individually due to medical order or if they are taking care of a dependent under the same scenario? In other words, does the employee or dependent have to be sick or potentially sick to be eligible for this sick leave? Or does it apply to all employees who are now required to stay home because of the stay-at-home order?

This is a bit unclear at this time, but based on the information we currently have available to us, the stay-at-home order does not trigger the paid leave under the new Act. We hope the government will come out with guidance on this in the coming weeks.

What are the standards to fire or dismiss someone who has gotten sick? If they are firing groups of other individuals, can they include the sick individuals in that group? Or are there special protections for individuals who are sick?

We recommend against terminating an employee just because he/she is sick. That could be seen as an interference with the new FMLA rights they could be entitled to on April 2. Additionally, COVID-19 may qualify as a disability under the ADA if it is severe enough and therefore the ADA protections may apply. This will require a case-by-case assessment. If an employer is going to lay off employees, it is okay to include sick employees in the layoff so long as those employees weren’t chosen for the layoff just because they are sick.

EPFMLA and Sick Leave – Is there an exemption for fewer than 50 employees? How do we apply for this exemption?

Yes. The law states that the government may grant hardship exemptions to companies with 50 or fewer employees, but there is currently no blanket exemption. The government will be providing additional information on exemptions.