Jaburg Wilk


The FMLA Expands to Cover More Employers

Categories: Employment, Article

The Families First Coronavirus Response Act is effective April 2, 2020. The law requires some employers to provide employees paid sick leave for COVID-19 related events and expands FMLA.

The Law Applies to Many Employers, But Not All Employers

The Act applies to government and employers with 500 or fewer employees. However, employers of healthcare providers and emergency responders “may elect to exclude” their employees from paid sick time. Additionally, the Department of Labor has the authority to exempt businesses with fewer than 50 employees from various requirements “when the imposition of such requirements would jeopardize the viability of business as a going concern.” No exemptions have been made yet.

Changes under the Family Medical Leave Act (“FMLA”)

Employees who have worked for their employers for at least 30 calendar days may also take sick leave for certain COVID-19 related events under the FMLA. The first ten days may be unpaid, but the employee may elect to substitute any accrued paid leave during this period. After 10 days, the employer must pay two-thirds of the employee’s normal pay rate (capped at $200 a day and $10,000 in the aggregate per employee). Thus, a full-time employee that receives the capped pay would be eligible for up to 10 weeks of paid leave under the FMLA.

This is significant because employees seeking FMLA leave for reasons unrelated to COVID-19 are not eligible for FMLA leave unless they have been employed by their employer for at least 12 months and have worked a minimum of 1,250 hours during that period. Also, the FMLA provides for up to 12 weeks of unpaid leave, whereas the employee will receive pay if they have a qualifying reason related to COVID-19.

By April 9, 2020, employers must keep a notice of the requirements of the Act prepared by or approved by the Department of Labor (“DOL”) “posted, in a conspicuous place on the premises of the employer where notices to employees are customarily posted.” An employer may satisfy this requirement by emailing or mailing this notice to employees or by posting the notice on an employee information internal or external website. The DOL has made approved posters available here.

Expansion of FMLA to More Employers

Employers with under 500 employees must now provide paid FMLA leave for certain COVID-19 related reasons.  For employers that were not previously subject to the FMLA, this will create additional burdens.  Previously the FMLA only applied to employers with more than 50 employees within a 75-mile radius from where the employee worked. Employees are eligible for FMLA leave in this context after working for an employer for 30 days.  However, an employer with fewer than 25 employees is not required to restore the employee to his or her former position if various conditions are met. 

Potential Liability for Failing to Comply with the Act

An employer that engages in a prohibited act, such as wrongfully terminating or otherwise retaliating against an employee for requesting or taking paid sick leave or FMLA may also be held liable for fines, penalties, liquidated damages, and attorney’s fees. There may also be personal liability for the decision makers and owners.

Changing and Complex Landscape for Employers

Employers will soon be subjected to expansive new requirements under the law, many of which go beyond the scope of this article. Additionally, the new law does not diminish employees’ right or benefits under existing Arizona law, collective bargaining agreements, or employers’ policies. Arizona employers are faced with the task of creating and implementing new policies that comply with all such requirements. An experienced employment attorney can assist employers navigate this unprecedented new legal landscape.

About the Author: Alden Thomas is an employment law attorney at Jaburg Wilk. She advises employees and employers in a wide array of issues, including state and federal sick leave, harassment, discrimination, wage and hour, wrongful termination, and whistle blower laws.