By Sam Light, CIRSA General Counsel (updated 4-6-2020)

In a separate article posted to the CIRSA website, we addressed how the FMLA applies to municipalities with less than 50 employees.  There, I explained that while any public agency is a covered employer under the FMLA, an employee is an “eligible employee” for FMLA leave only if the agency employs at least 50 employees within 75 miles of the work location (the “50/75 rule”).  Members should be aware of the significant change the Families First Coronavirus Response Act (Act) has made to the 50/75 rule for a new category of COVID-19 related leave, and  its impact on small employers.

The Act, which takes effect April 1, 2020, uses the existing FMLA as a framework to provide certain employees with the right to take up to 12 weeks of job-protected leave if the employee is unable to work (or telework) because they must care for a child (under 18 years of age) whose school or care provider is closed or unavailable due to a coronavirus emergency as declared by a Federal, State, or local authority.  In short, the Act adds one more category of FMLA leave—which we’ll call “FFCRA Family Leave” in the rest of this article.

Solely for the purpose of this new FFCRA Family Leave, the Act substitutes a new definition “eligible employee” that requires only that the employee have been on the job for 30 days.  This displaces the 50/75 rule that otherwise resulted in smaller municipalities having no eligible employees.  This new definition also displaces the minimum hours requirement–1,250 in the past 12 months—that applies for other categories of FMLA leave.   In short, the Act requires municipalities, regardless of the number of employees, to make FFCRA Family Leave available to their employees.

The Act requires that a portion of FFCRA Family Leave be paid, subject to caps, and includes other details regarding eligibility, exemptions, calculation of pay, and job restoration rights.  Even municipalities with small workforces will want to review these new FFCRA Family Leave requirements carefully, as a mistake in administering this new category of leave can lead to costly claims and disputes.

The FFCRA Family Leave requirements are distinct from the provisions of the FFCRA that require employers to provide up to 80 hours of sick leave to eligible employees for certain COVID-19 related reasons (“FFCRA Sick Leave”).  While a discussion of FFCRA Sick Leave is beyond the scope of this article, employers will want to review their obligations regarding both types of leave.

The details of FFCRA family leave are found in Division C of the Act. The U.S. Department of Labor, Wage and Hour Division (WHD), has published a useful summary of employers’ FFCRA Family Leave Requirements, as well as temporary regulations addressing both categories of leave. The WHD has also a website dedicated to FFCRA leave issues.

Members are encouraged to consult with their own counsel on legal issues related to this new FMLA leave.

Note:  This article is intended for general information purposes only and readers should consult with their entity’s own counsel for legal advice on specific issues.