COVID-19 Updates: FMLA Expansion Act

March 23, 2020

Fast Facts about the Emergency Family and Medical Leave Expansion Act (EFMLA) Provisions of the Family First Coronavirus Response Act

On March 18, 2020, the FFCRA was enacted.  Below are some fast facts employers need to know regarding how the FFCRA has modified the Family Medical Leave Act (FMLA).

Employers affected:

  • Employers with less than 500 employees. Yes, this includes employers with less than 50 employees previously excluded under FMLA.

Applicable Period:

  • April 2, 2020 through December 31, 2020.

What does it do: 

  • It expands the provisions of the Family Medical Leave Act by adding leave to care for children and requiring leave to be paid.

Who is eligible:  

  • An employee who has been employed for at least 30 days.

Definition modified: 

  • “Qualifying need” under the FMLA will include an employee who is unable to work or telework because the employee needs to care for a son or daughter 18 years old or younger if the school or care center is closed or the care provider is unavailable due to the COVID-19 public health emergency

Payment obligation:

  1. The first 10 days of leave may be unpaid.
  2. The employee may choose to substitute any accrued vacation, personal or sick leave for unpaid leave.
  3. The employer must provide paid leave after the first 10 days, not to exceed $200 per day or $10,000 in the aggregate.

Basis for calculation of pay:

  1. Pay 2/3 of employee’s regular rate of pay; and
  2. Number of hours worked, which would be either:
    • the number of hours an employee would normally be scheduled to work; or
    • for employees with varying hours, a number equal to the average hours the employee was scheduled over the 6-month period ending before leave was taken

Restoration to position:              

  • For employers with less than 25 employees, an employee who takes leave under the EFMLA does not need to be restored if:
    • the position no longer exists due to economic conditions or changes in operating conditions that a) affect employment and b) are caused by the COVID-19 emergency;
    • the employer makes reasonable efforts to restore the employee to an equivalent position; and
    • if the reasonable efforts fail, the employer contacts the employee within 1 year if an equivalent position becomes available. 

The information provided above is of a general nature and may or may not apply to your business.  We know there are a lot of considerations during this uncertain time, RMG is ready to answer questions regarding the EFMLA particular to the needs of your business. Contact the head of our employment law group, T. Christine Pham, via email at or by phone at (410) 547-9142.