Period of Unpaid Expanded FMLA Changed
The goal of the emergency sick leave and expanded FMLA leave laws is to provide an employee who is taking the two types of leave with continuous income, if the employee qualifies to take the expanded FMLA (which can only be taken to care for children whose school or daycare has been shut down due to COVID-19). In these circumstances, the first period of income is covered by the emergency sick leave, and the second period of income is covered by the expanded FMLA leave.

But, an inconsistency in the statute’s language results in some part-time employees having a gap in income and some having overlap, contrary to the statute’s goal. To resolve this inconsistency, the Department’s regulation changes the unpaid period of expanded FMLA to “two weeks” instead of “ten days.”

An Employer’s Status as “Covered” Can Change Over Time
An employer is “covered,” and thus required to provide the FFCRA paid sick leave and expanded FMLA leave, if it employs less than 500 people. This determination is made at the time an employee takes leave. Thus, an employer’s status as “covered” is not static. If an employer has 550 employees on April 10 but lays off 51 employees on April 15, the employer is thereafter a “covered” employer as of April 15, and must provide the sick leave and expanded FMLA benefits.