Legal Alert: How Does FMLA and EFMLA Apply to Leaves?

April 2nd, 2020 by Thomas Harte

The Department of Labor has released several questions and answers, with the most recent released on Saturday, March 28th. Clarification was provided on how FMLA and EFMLA apply to leaves and the 12-month period. A link to the Q&A is provided below, and this topic is addressed starting with question #44.

Do I qualify for leave for a COVID-19 related reason even if I have already used some or all of my leave under the Family and Medical Leave Act (FMLA)?

If an employer was covered by FMLA prior to April 1, 2020, the amount of Expanded Family and Medical Leave (EFMLA) available is 12 weeks total in a 12-month period. If you have already taken 12 weeks of FMLA in the 12-month period, you are not eligible for additional time under EFMLA.

It is important to note that the Emergency Family and Medical Leave Expansion Act only applies when you are on leave to care for a child whose school or daycare is closed due to COVID-19 related reasons. This would fall to the EFMLA and not under paid sick leave.

If you have already taken a portion of the 12 weeks that are available under FMLA, you may take the additional EFMLA up to the maximum of 12 weeks in a 12-month period.

For example, if your employer is covered under the FMLA on April 1,2020, and you were eligible for a preexisting FMLA and you took two weeks of leave in January 2020 you would have 10 weeks available FMLA leave remaining. EFMLA is a type of FMLA leave so you would have 10 weeks of EFMLA and not 12-weeks.

If you are entitled to paid sick leave under the Emergency Paid Sick Leave Act, you are entitled to it regardless of how much leave you have taken under FMLA, as paid sick leave is not a form of FMLA and does not count toward the 12 weeks in the 12 month period. If you take paid sick leave concurrently with the first two weeks of EFMLA, which may be otherwise unpaid, then those two weeks do count toward the 12 weeks in the 12-month period.

Overlapping Leave Laws and Employer Paid Time Off

The Families First Coronavirus Response Act (FFCRA) prohibits employers from requiring an employee to exhaust accrued paid time off such as sick or vacation time or state/local paid sick leave. Employees are entitled to utilize federal emergency paid sick leave before using state or local paid sick leave or accrued employer offered PTO.

You should review any state-specific leaves that may have been implemented in response to COVID-19. The DOLs Q&A document can be found on their website.


The information provided in this alert is not, is not intended to be, and shall not be construed to be, either the provision of legal advice or an offer to provide legal services, nor does it necessarily reflect the opinions of the agency, our lawyers or our clients.  This is not legal advice.  No client-lawyer relationship between you and our lawyers is or may be created by your use of this information.  Rather, the content is intended as a general overview of the subject matter covered. Those reading this alert are encouraged to seek direct counsel on legal questions.

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