Episode 68: Small Employers and New Emergency FMLA

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Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's Executive Vice President and General Counsel. And back on the podcast we have Jennifer Shaw of the Shah Law Group. Welcome, Jen.

Hi, Erica.

How are you doing? Well, it's so much fun. At least I get to socialize with you over the podcast.

That's how I feel like at least I'm seeing a human besides my daughter, who I love and adore, as you all know. But wow, we have really been sheltering.

Yes. And we have now moved to Zoom for purposes of this podcast. So that's what Jennifer means when she sees me. We're still sheltering in place as well. We're just turning to technology to help us out a little bit. So, Jennifer, what I thought would be good to talk about today. We've already covered a couple of times on the podcast about the Emergency Family Medical Leave act that was generated early in April with the federal government passing the expanded FMLA sick leave. What I realized and in talking with you, this FMLA Family Medical Leave act and how it applies to employers now with 500 or fewer employees is kind of a big shocker for those employers that normally never had to worry about family medical leave acting.

It really is. And I gotta tell you, when I first read the text of HR 6201, the House of Representatives, which is the Family First Law, I kept reading it thinking, okay, they don't really need employers with fewer than 500 employees. Like that doesn't make sense. Like, they're not trying to cover the small employers, but that's exactly what they did. So now, of course, Governor Newsom has issued an order, which we'll talk about on another day for larger employers of certain categories of employees. But many of these employees covered by the Families First Law are really not protected.

Or not covered by the FMLA normally. So all these terms about designation and.

Leave year and leave entitlement, they have no idea what we're talking about.

Okay, so let's first lay the groundwork here. Tell me, what is the Federal Medical Leave act and what employers are usually covered by the act, and what employees are generally eligible for leave under the act.

Great way to start. Okay, so the federal fmla, the Family and Medical Leave act, and the California Family Rights act, which is a state equivalent, pretty similar, not exactly the same. But for our purposes, you can think of it basically a federal law and a state law says, all right, if you have 50 employees within a 75 mile radius, employees at those locations are entitled to a Certain number of unpaid weeks of leave with job protection, meaning they get to come back to their job, you will pay their health insurance benefits to the same extent you paid while they were working. And they have to give you some documentation, but they get their leave. It's generally 12 weeks. If you're talking about service member leave, someone who's taking care of an ill or injured service member, they get up to 26 weeks. So you got to have 50 or more employees within a 75 mile radius. And the only eligible employees are employees who have at least 12 months of service with the employer and who have worked at least 1,250 hours in the 12 month period preceding the first day of leave. So you can't just show up on day one like you can with pregnancy disability leave and say, I'm here to take my FMLA CFRA time. Right? So they're very, very specific requirements.

Okay, awesome. Now let's talk about the emergency fmla.

Yeah. So the emergency FMLA says, wait a minute, first of all, we're gonna make this applicable to any employer with 500 or fewer employees, right? So we're saying, look, unless you have more than 500 employees, you're covered by this. So the big guys are exempt and the little guys are covered, okay? Which is completely contrary to what we're usually thinking. Second of all, you don't need 12 months of service or 1,250 hours. You need 30 days of service, and we don't care how many hours you worked. In other words, we're basically giving it to everybody. Now, what is.

Is time off to care for your child who cannot go to school or daycare because of COVID 19. So the school's closed, the daycare is closed, the caregiver can't work, whatever it is that is this emergency FMLA. Now remember, part of the family's first law is also COVID 19 sick leave. Right? But the emergency FMLA is just, is only creating this ability for people to take time off because their children need care.

Okay, so let's talk a little bit about such things as intermittent leave.

Yes. So just like regular fmla, employees can take intermittent FMLA caregiver leave or emergency FMLA leave. Right? How does that work? Well, what the law says is they get 12 weeks of emergency FMLA. Okay? This is the child care FMLA, 12 weeks of it, 10 weeks of which are paid, okay? Two weeks of which are not paid by the employer unless the employee uses the emergency Federal sick leave COVID 19 sick leave or accrued time off that they have with the employer, sick leave, vacation, PTO, et cetera. So total of 12 weeks during the 12 month period. Okay, so they can take it intermittently. What if you and I are married and we need to rotate? One of us stays home two days, one of us stays home three days each week. Well, if we work for different employers, we're going to be able to say we're going to take it intermittently. It's going to stretch out the time for longer. Right. So it's this idea of 12 weeks of leave at our regular schedule.

So we could do intermittently. What about the terminology? So let's talk about something because you've mentioned a couple times the leave being paid.

Is fmla, the normal quote, unquote fmla. Actually a paid leave.

No, and I'm so glad you brought that up. Before this emergency fmla, the only paid leave we had in California was bone marrow or organ donor leave. When somebody's out of accrued time with their employer, the employer had to continue salary, right? Or compensation, compensation continuation. This is the first law we've had besides that, where we have to do this. So regular FMLA is unpaid by the employer. Now, employees can get wage replacement benefits, right, by using accrued time or applying for state disability insurance or getting temporary workers compensation payments, using vacation, that sort of thing. But the employer didn't have to do compensation continuation and now they do. This is a huge change.

Huge change. Huge change. And what is that calculation for the emergency FMLA for paid time?

Well, this is so, I'm sorry, ridiculous on how they decided to do this. You have to look at the employee's average regular rate of pay over the prior six months and that's what you're going to base the rate of pay on. Obviously, for exempt employees, it's going to be the same rate. But if you have an employee, for example, who gets incentives, commissions, bonuses, their regular rate may fluctuate. You have to take the average regular rate of pay, which is the rate you use to pay overtime. Right. And apply that to calculate their compensation for this emergency FMLA. It's going to be 2/3 of that rate. The idea that they can supplement additional time if that's what they want to do.

And I'm sure that listeners are. Their head is probably spinning by hearing that. I want to rest assured for everybody. The Department of Labor on their website has extended their FAQs to include a little bit more information on how to calculate that regular rate because it is so confusing. And we're also here and so is Jennifer to help clients and members with trying to figure that out. Because quite honestly, trying to reach that and figure out what they mean is no easy task.

No.

And finally, Jen, let's just touch base on temp agency employees because I know that we, a lot of employers out there have utilized temporary employees through temp staffing agencies. And I hear a lot of times where employers say, well, I don't have to worry about that. That's the temp agency's employee. Let's just talk a little bit about that because I want folks to be aware that there is this thing called joint employer and how the FMLA treats joint employer and does so as well under the EFMA.

Absolutely. So remember, even though you have an employee from the temp agency or you hire them even directly as a temporary employee, you are still controlling their work. So it's obvious when you hire a temp that they're your employee. What's not so obvious when you hire a temp directly? Right. So you go out, you advertise, you run ACME company and you say acme company needs a temp and you bring in the temp yourself. That's obviously an employee. A lot of folks, as you just said, think, oh well, if I hire through account temps or I hire through Robert half or I hire through one of these other entities, then their attempt, that's the agency's problem. That's not my problem. Not quite. Remember, we've talked about this with respect to sexual harassment prevention training. We've talked about this with respect to internal investigations liability. Same thing with the efmla. We are going to have to give that time. Whether or not we consider ourselves to be their sole employer, we are clearly their joint employer with the temp agency.

Okay, fantastic information. And I think we're going to cut it quits on this issue here because we've given a lot of information and some of that can be really challenging for folks to digest. Again, we wanted to give some of our traditionally non FMLA employees a little bit of a heads up on the EFMLA and just kind of make themselves, make them familiar with some of the terminology that those traditional FMLA employers utilize. So thank you, Jennifer, for all of that and hopefully we will all be back to normal at some point and we won't have to worry too much about this EFMA. But until then, we're here to help you out. So thank you so much again, Jennifer, for being here on the podcast.

Thank you so much, Erica. I love it. And I just want to say one thing about the DOL Q&As, you're absolutely right. Folks have to keep on top of those. They update them regularly and it's really important for folks to know what's going on in that area. California, of course, has a webpage where all of those resources are referenced. And so it's a good the governor's office has a good website that you can use for that purpose, but it will be important to educate yourself.

Yep. And we have a good resource page on Cal Chamber too that has a lot of that information as well.

Yeah, we have one for our blogs as well.

Yep. So lots of good places for you all to go. So I guess one of the silver lining with all of this is there's not a lack of information, it's just sifting through all of it and finding the answer that you need. Well, hopefully we were able to give you some answers today. So thank you again for joining us on the workplace. And as always, please remember to share or to encourage your friends to subscribe by going to calchamber.com, hand.