Federal Government Set Limits on Enforcement of Expanded Family and Medical Leave

On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) became law. This bill is not as comprehensive as other bills that Congress has passed in response to the global COVID-19 pandemic, but it has some of the most important provisions affecting employment law. New Jersey employment law provides paid sick leave for workers and is one of few states to do so. The FFCRA establishes a temporary nationwide system of paid sick leave. It also temporarily expands the unpaid leave that is available under the federal Family and Medical Leave Act (FMLA). These provisions have several important limitations, including the total exclusion of employers with five hundred or more employees. A new temporary rule from the Department of Labor’s Wage and Hour Division (WHD) limits some workers’ ability to enforce their rights under the system of expanded FMLA leave.

FMLA Enforcement at Normal Times

The FMLA applies to employers with fifty or more employees, and employees who have worked at least 1,250 hours during the previous twelve months. In any twelve-month period, an eligible worker may take up to twelve weeks of unpaid leave for certain purposes, including a “serious health condition” and the need to care for a family member with such a condition.

Employers may not interfere with an eligible employee’s use of authorized leave, nor may they retaliate against an employee for taking leave. The employee’s job is protected during their leave. Employees may file a civil lawsuit against an employer who violates these provisions, and may recover damages including lost wages and benefits.

FMLA Expansion in 2020

The Emergency Family and Medical Leave Expansion Act (EFMLEA), located in Division C of the FFCRA, expands the rights provided by the FMLA through the end of 2020. It applies to all employers with fewer than five hundred employees. A worker must only have been with their employer for thirty days to be eligible.

Workers may take leave under the EFMLEA for reasons related to COVID-19, including quarantine or self-quarantine, caring for a quarantined family member, and caring for a child or children because of school closures. The EFMLEA’s provisions work in conjunction with the paid sick leave provisions of the FFCRA.

Limits on Enforcement of Expanded FMLA Leave

The EFMLEA specifically states that employers who are covered by the EFMLEA but not the FMLA — meaning employers with fewer than fifty employees — are not subject to the FMLA’s enforcement provisions. The WHD has included this in its temporary rule and in the regulations implementing the EFMLEA. The expanded leave provisions are therefore only enforceable against employers with fifty to 499 employees.

The FFCRA also allows exemptions from both the EFMLEA and the paid sick leave provisions for employers with fifty or fewer employees, if complying with these laws “would jeopardize the viability of the business as a going concern.” The WHD’s temporary rule also addresses how employers may claim an exemption. This may leave those employers’ workers with very little recourse if they want to take advantage of expanded family and medical leave.

The experienced and knowledgeable employment attorneys at the Resnick Law Group practice in New Jersey and New York. We are available to answer your questions and advise you of your rights and options. To schedule a confidential consultation to see how we can help you, please contact us today online, at 973-781-1204, or at 646-867-7997.

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