Siri Cody Mu, Esq., PHR
COVID-19: Intro of Leave Laws (FMLA, CFRA, FFCRA)
Updated: Apr 1, 2020
COVID-19 (a.k.a. "coronavirus") has led to the enactment of the Families First Coronavirus Response Act (FFCRA), a federal leave law that provides additional leave and income protections for certain workers. This temporary emergency law joins the ranks of the more permanent federal law known as Family and Medical Leave Act (FMLA). The FFCRA should not be confused with the California leave law known as the California Family Rights Act (CFRA).
These three laws (FFCRA, FMLA, and CFRA), individually and collectively, are commonly referred to as "leave laws". They will oftentimes be the first set of laws to consider when navigating California employee leave rights during the COVID-19 pandemic.
There are a couple of other laws that provide leave protections for employees, but they're not technically considered "leave laws" due to their broader scope. These two laws are the federal Americans with Disabilities Act (ADA) and California's Fair Employment and Housing Act (FEHA). While the ADA is specific to disability protections, the FEHA encompasses an even broader scope of protections for other various protected demographics.
So let's summarize what we have so far (for our purposes here, I've highlighted aspects of each law that I feel are useful to recognize in relation to COVID-19. Each law may allow for additional leave rights and qualifiers not mentioned herein):
Leave Laws Highlighted
FMLA - applies at the federal level (i.e. nationwide), to government agencies and schools, and to all private companies with 50 or more employees within a 75-mile radius. Allows for up to 12 weeks of leave to attend to a personal or family member's serious medical condition.
CFRA - applies at the California state level, to employers with 50 or more employees within a 75-mile radius. Allows for up to 12 weeks of leave to attend to a personal or family member's serious health condition. Oftentimes runs concurrently with FMLA so there's no double dipping.
FFCRA - temporary (from April 1, 2020 to December 31, 2020), applies at the federal level (nationwide), to government agencies and schools, and to all private companies with 499 or less employees in aggregate. Allows for up to 12 weeks of emergency leave to care for a minor child when the need is due to a public health emergency (a.k.a. "Emergency FMLA leave"). FFCRA also allows for up to 10 days of Emergency Paid Sick Leave for qualifying reasons.
Disability Protection Laws
ADA - applies at the federal level (nationwide), to employers with at least 15 employees. Provides that a leave of absence of reasonable duration may be an accommodation for a disability.
FEHA: applies at the California state level, to all employers with 5 or more employees. Provides that a leave of absence of reasonable duration may be an accommodation for a disability.
So, with all of these laws combined, there are several ways employees may qualify for a protected leave of absence. Employers, usually by way of their HR crew, will need to determine which laws apply based on their company profile.
In addition to there being specific coverage criteria for employers, each employee will also need to ensure they qualify based on their personal circumstances. (We didn't even dive into this vast topic yet.)
I'll also mention that these aforementioned laws were created by the legislative branches of government. Agencies from state and federal executive branches have the power to create regulations that essentially expand upon the text of each legislation. For federal employment laws, the executive agency responsible for creating these regulations and clarifications is typically the Department of Labor (DoL). Luckily, the DoL recently provided much needed clarification on the FFCRA, which can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
For California, the Department of Fair Employment and Housing is the state agency that interprets and provides regulations regarding the CFRA. It is expected that the California legislature will soon enact a state version of the FFCRA.
Note that these laws don't technically provide for income replacement while on leave (except for select portions of the FFCRA). Income replacement for employees on leave is commonly provided by State Disability Insurance (SDI) or Paid Family Leave (PFL), both of which are administered by CalEDD. Employees also typically use accrued vacation, paid sick leave, or PTO accruals to provide income while on leave. Private insurance plans, either provided by the employer or obtained personally, are also other mechanisms by which folks can obtain income replacement.
There's so much that can be discussed about the various leave laws at play. I hope this information helps demonstrate what the tip of the iceberg looks like. You will definitely see more from me about COVID in the days to come.