Updated: Sep 11
This article explores how COVID-19 has changed the Family Medical Leave Act and how it applies to Washington businesses.
COVID-19 brought many changes and challenges to Washington businesses. One of those changes applies to the law dealing with employee medical leave: The Family Medical Leave Act (FMLA).
What is the FMLA?
The Family Medical Leave Act is a federal law that guarantees unpaid medical leave to certain employees of covered employers. Because it is a federal law, it applies to businesses in Washington, as well as the rest of the United States. Every FMLA-covered employer is required to post a notice of FMLA's provisions, and instructions on how to file complaints concerning violations of FMLA. It is worth noting that, depending on the state or city, local laws may offer additional options when it comes to medical leave. Additionally, the business itself may offer additional paid or unpaid leave to their employees.
"Every FMLA-covered employer is required to post a notice of FMLA's provisions, and instructions on how to file complaints concerning violations of FMLA."
Who is covered?
The Family Medical Leave Act covers all public agencies, such as state and federal employees, as well as the employees of private businesses in Washington, if they employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year.
However, an employee of a covered Washington business is only covered by FMLA if they have:
Worked 1,250 hours during the 12 months prior to the start of their leave (with a different hours requirement for airline flight crew employees);
Work at a location where the employer has 50 or more employees within a 75 mile radius;
Worked for the employer for at least 12 months, although the 12 months need not be consecutive.
What is guaranteed?
“There are times when a "key employee" is not entitled to the same job upon returning from FMLA leave.”
The FMLA only requires a business to allow an employee to take unpaid leave for certain qualifying personal or family reasons, up to a total of 12 workweeks. An employee who takes FMLA-covered leave is entitled to return to the same job or one that is equivalent. There are times when a "key employee" is not entitled to the same job upon returning from FMLA leave. A "key employee" is an employee who earns a salary that is among the highest 10 percent of all employees. To deny a key employee the same job, the employer must demonstrate that the restoration of employment will cause "substantial and grievous economic injury" to the employer.
Moreover, the employer must continue to maintain existing health insurance coverage while the employee is on FMLA leave.
What conditions qualify an employee to use FMLA leave?
An employee can take leave under the protections of the FMLA for one or more of the following reasons:
for the birth of a son or daughter, and to bond with the newborn child;
for the placement with the employee of a child for adoption or foster care, and to bond with that child;
to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;
to take medical leave when the employee is unable to work because of a serious health condition; or
for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.
The FMLA also allows eligible employees to take up to 26 workweeks of unpaid, job-protected leave in a “single 12-month period” to care for a covered servicemember with a serious injury or illness.
What is the impact of COVID-19 on FMLA leave for Washington businesses?
In response to COVID-19, Congress passed the Families First Coronavirus Response Act (FFCRA), which alters some of the FMLA's provisions. Currently, these new provisions are set to expire after December 31, 2020.
For all employees, regardless of time worked...
Whereas the FMLA normally guarantees only unpaid leave, the FFCRA provides two weeks (up to 80 hours) of paid sick leave where a covered employee is quarantined due to government order or medical advice. This paid sick leave must be at the employee's regular rate of pay. The same applies to an employee using sick leave because they are experiencing COVID-19 symptoms and are seeking a medical diagnosis.
"...the FFCRA provides two weeks (up to 80 hours) of paid sick leave..."
Additionally, the FFCRA provides paid sick leave for two weeks at two-thirds the employee's regular rate of pay when the employee must take care of someone in quarantine, to care for a child whose school or daycare is closed due to COVID-19, or because the employee is experiencing a "substantially similar condition" as specified by the Secretary of Health and Human Services. Currently, HHS has not defined any new situations that would qualify as a substantially similar condition.
For employees employed for at least 30 days...
For employees who have worked at least 30 days, FFCRA provides an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee's regular rate of pay where the employee is unable to work because they must take care of a child whose school or daycare is closed due to COVID-19.
Employers can receive dollar-for-dollar tax credits for the money spent covering the paid leave requirements under the FFCRA, including money spent maintaining health insurance for the employee during the leave period.
It is important for Vancouver, Washington businesses to understand the impact of the Family Medical Leave Act during COVID-19. The laws and regulations are complex, and failure to comply may result in civil penalties. Contact In-house | On-site to speak with a Vancouver, Washington attorney familiar with the FMLA's provisions, to ensure that your business is in full compliance.