Published on: Tue 24th Mar, 2020 By: Campbell Durrant, P.C.
Some governmental employers with 500 or more employees have concluded that the provisions of the Emergency Family and Medical Leave Expansion Act (the “Expansion Act”) do not apply to them. A careful analysis, however, of both the text of the Expansion Act and the Family and Medical Leave Act demonstrates that all governmental employers are covered by the Expansion Act, even if they have 500 or more employees.
The Expansion Act temporarily expands the FMLA to permit FMLA leave to be taken if a public health emergency is declared by a Federal, State, or local authority due to the COVID–19 pandemic. An eligible employee may take leave under the Expansion Act if he or she is unable to work or telework due to a need to care for the employee’s minor child because the child’s school or paid child care provider is closed due to the pandemic. The first ten (10) workdays of FMLA Expansion leave are unpaid, although employees have the option to use other types of accrued paid leave during that time. After the first ten (10) workdays of unpaid leave, eligible employees will be paid two-thirds (2/3) of their regular rate of pay based on the number of hours they would normally be scheduled to work, subject to statutory caps. The Secretary of Labor has the authority to issue regulations that could provide additional clarification or guidance on the proper implementation of the Act, but that has not happened yet.
The Expansion Act contains language indicating that it applies to employers with “fewer than 500 employees.” At first glance, it might appear that a governmental employer with more 500 employees does not apply to them. This language, however, must be read in context.
The “fewer than 500 employees” language in the Expansion Act amends Section 101(4)(A)(i) of the FMLA, but the Expansion Act also indicates that the “other definitions in section 101 [of the FMLA] shall apply.” Section 101(4)(A)(i) of the FMLA applies to private sector employers, not governmental employers, and indicates that “[t]he term ‘employer’ (i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year[.]” 29 U.S.C.A. § 2611(4)(A)(i). For the limited purpose of the new FMLA expansion only, this language in the definition of the term “employer” that pertains to private sector employers is now amended by replacing the phrase “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year” with the phrase “fewer than 500 employees.”
The part of the FMLA that relates to governmental employers was not changed by the Expansion Act and has not been amended to implement a 500 employee or more limit on them. The definition provision of the FMLA that relates to governmental employers, Section 101(4)(A)(iii), provides that the term “employer” for purposes of FMLA coverage “includes any ‘public agency’, as defined in section 3(x) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(x)).” 29 U.S.C.A. § 2611(4)(A)(iii). This is one of the “other definitions in section 101” of the FMLA that the Expansion Act provides “shall apply” or continue to apply unchanged under the Expansion Act. Because the FMLA’s definition of employer that pertains to governmental employers remains unchanged by the FFCRA, the new FMLA expansion applies to all governmental employers even those with 500 or more employees.
A review of the definitions of the term “eligible employee” in both the FMLA and the Expansion Act leads to the same conclusion. Under the FMLA, to be an “eligible employee” entitled to actually take FMLA leave an individual must have been employed by the employer for at least 12 months, must have worked at least 1,250 hours during the 12 months prior to the start of the leave and must be “employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.” 29 C.F.R. § 825.110; see also 29 U.S.C.A. § 2611(2). While the FMLA indicates that local governments of all sizes are “covered” by the FMLA, their employees are only eligible to take FMLA leave if the employer has 50 or more employees (and does so within 75 miles of the employee’s worksite). The regulations and courts have confirmed this interpretation. See 29 C.F.R. § 825.108(d) (“All public agencies are covered by the FMLA regardless of the number of employees; they are not subject to the coverage threshold of 50 employees carried on the payroll each day for 20 or more weeks in a year. However, employees of public agencies must meet all of the requirements of eligibility, including the requirement that the employer (e.g., State) employ 50 employees at the worksite or within 75 miles.”); Tilley v. Kalamazoo Cty. Rd. Comm’n, 777 F.3d 303 (6th Cir. 2015) (a county road commission employee did not qualify as an “eligible employee” under the FMLA, where the commission did not employ at least 50 employees at, or within 75 miles of, his workplace when he requested FMLA leave).
In contrast to the FMLA, the Expansion Act’s definition of “eligible employee” indicates that “in lieu of the definition in Section 101(2)(A) and 101(2)(B)(ii) [of the FMLA], the term ‘eligible employee’ means an employee who has been employed for at least 30 calendar days by the employer with respect to whom leave is requested” under the Expansion Act’s new COVID-19-related provisions. Section 101(2)(B)(ii) of the FMLA provides, in part, that the term “eligible employee” does not include “any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.” 29 U.S.C.A. § 2611(2)(B)(ii). The “in lieu of” language in the Expansion Act indicates that for the limited purposes of the new Expansion Act leave, the “exclusions” language in the FMLA’s definition of “eligible employee” in Section 101(2)(B)(ii) of the FMLA does not apply. In other words, all employees of governmental employers are now covered, even if their governmental employer has less than 50 employees and all employees with at least 30 calendar days of employment are permitted to take Expansion Act leave.
Thus, a careful review of the definitions of the terms “employer” and “eligible employee” in the FMLA and the Expansion Act leads to the inexorable conclusion that all governmental employers, regardless of whether they have 500 or more employees or not, are covered by the Expansion Act. The part of the Expansion Act that changes the definition of a covered “employer” under Section 101(4)(A)(i) of the FMLA to “fewer than 500 employees” does not apply to governmental employers.