The Family and Medical Leave Act, commonly known as FMLA, isn’t anything new. It was passed in 1993 to protect the jobs of workers who needed to take time off because of a serious health concern, the birth or adoption of a child or other qualifying emergency.
While FMLA prevents employers from terminating a worker on leave, it traditionally hasn’t included any provision for payment. That has left some questioning its value.
“Unless you have considerable savings, having unpaid leave is not helpful,” says Sharona Hoffman, a professor of law and bioethics at Case Western Reserve University in Cleveland.
That may be why last year’s Families First Coronavirus Response Act, called FFCRA, enacted new FMLA guidelines that mandated paid time off. Those guidelines expired last year, but Congress did authorize an extension of tax credits to employers who voluntarily continued to pay workers on leave. Now, the American Rescue Plan Act of 2021 has extended those credits through Sept. 30, 2021.
Keep reading for more about the Family and Medical Leave Act and the provisions included in the latest stimulus package.
What Is the FMLA?
The Family and Medical Leave Act allows eligible employees to take up to 12 weeks of unpaid time off during a 12-month period. The law applies to private companies that employ at least 50 workers. Schools and government agencies are also subject to the law, regardless of how many people they employ.
“It’s really a job-protected leave status,” says Amy Mosher, chief people officer for isolved, a human capital management software company that offers benefit services such as COBRA administration.
Employees who have worked for a covered employer for at least 12 months and accrued at least 1,250 hours of work in the 12 months prior to their leave don’t have to worry about being fired for taking time off in these situations:
- The birth or adoption of a child.
- The care of a spouse, child or parent with a serious health condition.
- The development of a serious health condition that makes an employee unable to complete their essential work functions.
- A qualifying emergency related to a spouse, child or parent in the military being on active duty.
What Was the FMLA Extension Passed Last Year?
Last year, the FFCRA provided three ways for employees to receive paid sick leave:
- Up to 80 hours of paid sick leave at an employee’s regular rate of pay in the event the person was quarantined or experiencing COVID-19 symptoms and seeking a diagnosis.
- Up to 80 hours of paid sick leave at two-thirds of an employee’s regular rate of pay in the event they needed to care for someone who was quarantined or to care for a child whose school or day care closed for reasons related to COVID-19.
- Up to an additional 10 weeks of paid family and medical sick leave at two-third’s an employee’s regular rate of pay to care for a child whose school or day care closed for reasons related to COVID-19 or for other eligible reasons. Workers must have been employed for 30 calendar days to receive this benefit.
These rules applied to businesses with 500 or fewer employers, and some companies employing fewer than 50 workers were exempt. Benefits under the FMLA extension were also capped at $200 per day and $10,000 total.
As of Dec. 31, 2020, the paid sick leave provisions of the FFCRA expired. Instead of requiring paid sick leave, Congress made it a voluntary option for businesses.
“What they did is if you voluntarily gave (paid sick leave), you could get tax credits through March 31,” says Dena Sokolow, an employment attorney with the Baker Donelson law firm in Tallahassee, Florida.
What Are the New FMLA Guidelines in the American Rescue Plan Act?
The third round of stimulus spending doesn’t include any expansion of mandatory paid medical leave, something Sokolow says is surprising.
“President Biden spoke often about extending the paid COVID-19 leave as part of his stimulus package and even proposed some significant expansions to it,” she says. However, mandatory paid sick leave never made it into the House version of the American Rescue Plan Act nor was it discussed in the Senate.
Instead, Congress extended the current tax credits for voluntary sick leave pay to Sept. 30, 2021, and added a new reason for leave. Now, workers may be eligible for time off to receive the COVID-19 vaccine or if they are having side effects related to receiving the vaccine.
“I’m hearing a lot of conversations (from employers) about how do we incentivize workers to get the vaccine,” says Megan Winter, co-chair of the employee leaves and accommodations practice for law firm Fisher Phillips in San Diego. Offering paid leave to employees so they can receive the vaccine may help businesses get more of their workers immunized.
Businesses receive a dollar-for-dollar tax credit for offering paid sick leave under the provisions of the new stimulus package. While workers were only eligible for up to $10,000 of paid sick leave under last year’s FMLA extension, Congress has authorized credits for up to $12,000 of qualifying leave time now.
“In the interest of ensuring the continued health and welfare of your employee base, I would recommend eligible businesses extend the availability of the enhanced leave to employees,” Mosher says. “Even though it is no longer mandatory, it is the right thing to do.”
What Are the New Provisions Related to COBRA Health Insurance?
For workers who find themselves laid off, there is good news related to their health insurance.
“If someone loses their job due to the pandemic (and) if the person elects COBRA, the employer pays the premium,” Sokolow says.
COBRA, standing for Consolidated Omnibus Budget Reconciliation Act, allows employees to continue their workplace health insurance after leaving a job. However, premiums are typically cost-prohibitive, and Mosher says normally only about 1 in 10 former employees opt for the coverage. However, with the new stimulus bill providing coverage for free until Sept. 30, 2021, she expects practically all newly laid off workers will choose COBRA coverage now.
“It’s a tremendous benefit,” Mosher says. As with paid sick leave, a tax credit will be available for businesses to recoup their costs. To handle the significant amount of paperwork required to administer the benefit, Mosher recommends companies lean heavily on their insurance provider or broker for support. “For us, as a COBRA provider, it’ll be a whirlwind of activity,” she says.
What Is the Future of the Family and Medical Leave Act?
Depending on the status of the pandemic in the fall, it’s possible additional provisions related to FMLA could be enacted. Whether these would entail an extension of tax credits or something else is unknown. It’s also possible that changes could be made to the FMLA regardless of the pandemic.
“I think Biden is very interested in having paid medical leave,” Hoffman says. “We’re an outlier among other countries that offer it.”