FMLA in the Time of Corona

“Things keep changing right now,” says Kathy Speaker MacNett, a managing member of SkarlatosZonarich LLC, located in Harrisburg, Pennsylvania. “It’s hard to say where we’ll end up.”

Speaker MacNett is well versed in the changing regulations around the Family Medical Leave Act, or FMLA, which has been in place since 1993.

Her law practice focuses on labor-relation matters and the representation of employers before federal and state administrative agencies and courts on a wide range of labor and employment law matters, including the FMLA.

Her understanding of labor issues is also bolstered by her work not only as research director to the Labor Relations Committee in the Pennsylvania House of Representatives and as assistant counsel to the Pennsylvania Labor Relations Board, but also in labor-related matters gained in previous employment positions.

With her breadth of experience, she is able to provide perspective on the changing face of FMLA.

“By the early ’90s, with more women in the workplace, companies realized there was strain,” says Speaker MacNett. “More effort was necessary to attempt to balance the work and private lives of women.”

Women need personal time after a birth, adoption, or foster care placement, “and it often falls to women to take care of an ailing spouse, parent, or child,” she adds.

Finally, late in 1993, Congress passed the Family and Medical Leave Act, which entitles eligible employees (men and women) of covered employers to take unpaid leave time in specific situations, with a guarantee that they could return to the same or an “equivalent” job, with the same pay and benefits. 

Specifically, the traditional FMLA benefit applies to:

• The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care

• The need to care for a spouse, son, daughter, or parent who has a serious health condition

• A serious health condition that makes the employee unable to perform the essential functions of his or her job

• For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status

Employers who must comply have 50 or more employees or are public agencies, including local, state, or federal government agencies and all public or private elementary or secondary schools, regardless of the number of employees employed.

For the employee to qualify for the FMLA benefit, he or she must have worked for the employer for at least 12 months, with at least 1,250 hours of service during that 12-month period immediately preceding the leave.

Airline flight crews and returning military members have special FMLA rules.

Under some circumstances, employees may take FMLA leave in separate blocks of time or by reducing the time the employee works each day or week for a single qualifying reason.

Speaker MacNett points out that while the FMLA does not fund or require employee compensation during FMLA leave, some companies offer partial pay or allow the employee to apply accrued paid leave, such as sick or vacation leave, to cover some or all of the FMLA leave period.

FMLA Expanded during the Crisis

With the coronavirus, “Everything is changing so fast,” says Speaker MacNett.

Since so many families now have to care for children who would normally be in school, Congress signed the Families First Coronavirus Response Act (FFCRA) into law on March 18. The act requires specific employers with fewer than 500 employees to provide paid sick leave or expanded family and medical leave for reasons related to COVID-19.

Employees with larger companies usually have corporate policies or union contracts that address the need for family leave.

According to the U.S. Department of Labor, businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if these leave requirements “jeopardize the viability of the business as a going concern.”

Speaker MacNett explains that the FFCRA provides two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay for employees who have worked at least 30 days for the company under the following circumstances:

• If the employee is unable to work because he or she is quarantined and/or is experiencing COVID-19 symptoms and is seeking a medical diagnosis

• If the employee is caring for an individual subject to quarantine or is caring for a child under 18 at home because of closed schools or daycare centers

In addition, the employee who has been employed for at least 30 days and has a child at home may be eligible for an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay up to specified caps. These provisions apply from the effective date through Dec. 31, 2020.

Despite these benefits, Speaker MacNett notes that some employees may find unemployment compensation more beneficial: The government has added a $600 bonus to the weekly unemployment benefit, as part of the $2 trillion stimulus package, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, passed March 27.

On top of expanded unemployment benefits, CARES also provides small businesses with advantageous loans and tax breaks to pay payroll, utility, mortgage, and other costs necessary to stay in business.

Speaker MacNett points out that despite these supports, smaller companies may face internal tensions.

“On one hand, employees have to be paid and given time off,” she said. “On the other hand, you have to keep up operations, especially if you are providing ‘essential’ services.”

She concludes that a lot of details must still be worked out — both by the government, businesses, and individuals accessing the new federal programs, loans, and funding options.

“You can’t double dip, and there’s a lot of opportunity for fraud,” says Speaker MacNett. “It’s impossible to audit all of these programs.”

What she is certain about is that these temporary programs will have a long-term impact on the FMLA.

As government and companies recognize the stressors on families in the time of corona, they are coming to understand that employees may need supports during other times of crisis as well.

“I see these changes in the FMLA as an initial step,” Speaker MacNett says. “Eventually, all FMLA leave may be paid.”

Kathy Speaker MacNett is a labor relations attorney and managing member of the Harrisburg law firm of SkarlatosZonarich. Previous positions also include shareholder with the Harrisburg office of Buchanan Ingersoll, P.C. and with the law firm of Baskin, Flaherty, Elliott & Beren.