Eligible for E(expanded)FMLA or FMLA?


One of our employees has advised that her mother sustained an injury at home and fractured her spine, which is unfortunately fairly serious and has rendered her temporarily (hopefully) partially paralyzed. The employee’s mother is in the hospital and is scheduled for surgery, and the employee will need to care for her. The employee has inquired as to what forms of leave she may be permitted to take and what the status of these would be, whether paid or unpaid. This employee is eligible for regular FMLA, which does not involve any financial benefit other than continuation of health insurance. My question is whether the employee can twist this into a COVID-19-related FMLA leave and thus be eligible for compensation at 2/3 her regular rate of pay, or use COVID-19 and the need to provide continuing health care for her mother into a reason for being eligible for state unemployment insurance.


The maximum period of leave an employee can take under the federal Family and Medical Leave Act (FMLA), including any such leave as may be taken under the expanded FMLA (EFMLA) provisions provided by the new federal Families First Coronavirus Response Act (FFCRA), is still 12 weeks. The Department of Labor addresses this as follows in its Frequently Asked Questions page at question 45 as follows:

"May I take leave under the Family and Medical Leave Act over the next 12 months if I used some or all of my expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act?"

It depends. You may take a total of 12 workweeks of leave during a 12-month period under the FMLA, including the Emergency Family and Medical Leave Expansion Act. If you take some, but not all 12, workweeks of your expanded family and medical leave by December 31, 2020, you may take the remaining portion of FMLA leave for a serious medical condition, as long as the total time taken does not exceed 12 workweeks in the 12-month period. Please note that expanded family and medical leave is available only until December 31, 2020; after that, you may only take FMLA leave. . . . For example, assume you take four weeks of Expanded Family and Medical Leave in April 2020 to care for your child whose school is closed due to a COVID-19 related reason. These four weeks count against your entitlement to 12 weeks of FMLA leave in a 12-month period. If you are eligible for preexisting FMLA leave and need to take such leave in August 2020 because you need surgery, you would be entitled to take up to eight weeks of FMLA leave. However, you are entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave you have taken under the FMLA. Paid sick leave is not a form of FMLA leave and therefore does not count toward the 12 workweeks in the 12-month period cap. But please note that if you take paid sick leave concurrently with the first two weeks of expanded family and medical leave, which may otherwise be unpaid, then those two weeks do count towards the 12 workweeks in the 12-month period."

Leave under the EFMLA can be taken by any employee employed by the employer for at least 30 days (before the first day of leave), and it can be taken only if such employee is unable to work or telework because he or she is needed to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency (such as the COVID-19 pandemic). At present, this is the only qualifying need for EFMLA, and as such, it is difficult to envision how the subject employee would or could seek to “twist” the need to care for her mother – whose sustained a back injury at home – into a COVID-19-related absence. As noted, EFMLA is available only to employees who cannot work because they are needed to care for a minor child whose school or place of care or caregiver is closed or unavailable as a result of the pandemic. EFMLA is not available to care for a parent under any circumstance. That said, the paid sick leave benefit under the FFCRA may be available to care for a parent in some cases where coronavirus is implicated, but that does not appear to the case here (incidentally, the paid sick leave benefit under the FFCRA provides two weeks/80 hours of time off).

You indicate that an employee's mother sustained an injury in her home and will have surgery. The employee is inquiring as to what forms of leave may be available to her, paid or unpaid. As noted, the EFMLA is not available to the employee for this purpose. If, however, she meets eligibility criteria under the FMLA, and if she is needed to provide care to her mother (who arguably has a serious health condition as the Act defines the term), then she may indeed be entitled to up to 12 weeks of unpaid but job-protected leave in the employer's 12-month period under the FMLA (assuming she has not depleted any FMLA/EFMLA previously in the same 12-month period). The employer is entitled to documentation to confirm the employee's need for leave for this purpose, including a Certification from the employee's mother's healthcare provider. This and other FMLA forms can be found online by clicking here.

You are correct that leave taken pursuant to the new EFMLA is paid (at 2/3 the employee's regular rate of pay), whereas leave for any of the reasons provided under the existing FMLA is unpaid. That said, the employee may qualify for partial wage replacement benefits during an otherwise-unpaid FMLA leave through your state’s unemployment and/or disability insurance program. These are state programs, however, not governed by federal law, and are determined case by case by your state agency based on applicable facts. The subject employee would have to apply for these benefits. Certainly the employer should ensure it enforces any company policies or applicable employment contract that affords employees time off (with or without pay) in this situation, as well.


Published Date:June 16, 2020

Categories: HR Question of the Month