29 U.S. Code § 2620 - Public health emergency leave

(a) Definitions The following shall apply with respect to leave under section 2612(a)(1)(F) of this title:

(1) Application of certain terms The definitions in section 2611 of this title shall apply, except as follows:

In lieu of the definition in sections 2611(2)(A) and 2611(2)(B)(ii) of this title, the term “eligible employee” means ansection 2612(a)(1)(F) of this title.

For purposes of clause (i), the term “employed for at least 30 calendar days”, used with respect to anMarch 1, 2020 , had worked for the employee’s layoff, and was rehired by the employer.

For purposes of applying section 2612(a)(1)(F) of this title and this section under the Congressional Accountability Act of 1995 [2 U.S.C. 1301 et seq.], in lieu of the definition in section 202(a)(2)(B) of that Act (2 U.S.C. 1312(a)(2)(B)), the term “eligible employee” means a covered2 U.S.C. 1301)) who has beensection 2612(a)(1)(F) of this title.

The term “qualifying need related to a public health emergency”, with respect to leave, means the son or daughter under 18 years of age of such child care provider of such son or daughter is unavailable, due to a public health emergency.

The term “public health emergency” means an emergency with respect to COVID–19 declared by a Federal, State, or local authority.

The term “child care provider” means a provider who receives compensation for providing child care services on a regular basis, including an “eligible child care provider” (as defined in section 9858n of title 42).

(3) Regulatory authorities The Secretary of Labor shall have the authority to issue regulations for good cause under sections 553(b)(B) and 553(d)(3) of title 5—

to exclude certain health care providers and emergency responders from the definition of eligible employee under subsection (a)(1)(A);

to exempt small businesses with fewer than 50 employees from the requirements of section 2612(a)(1)(F) of this title when the imposition of such requirements would jeopardize the viability of the business as a going concern; and

as necessary to carry out the purposes of this Act, including to ensure consistency between this Act and Division E and Division G of the Families First Coronavirus Response Act.

The Director of the Office of Management and Budget shall have the authority to exclude for good cause from the requirements under subsection (b) certain employers of the United States Government with respect to certain categories of Executive Branch employees.

The first 10 days for which an employee takes leave under section 2612(a)(1)(F) of this title may consist of unpaid leave.

An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave under section 2612(a)(1)(F) of this title in accordance with section 2612(d)(2)(B) of this title.

(i) In general Subject to clause (ii), paid leave under subparagraph (A) for an employee shall be calculated based on—

an amount that is not less than two-thirds of an employee’s regular rate of pay (as determined under section 207(e) of this title); and

the number of hours the employee would otherwise be normally scheduled to work (or the number of hours calculated under subparagraph (C)).

Subject to clause (ii), a number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type.

If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

In any case where the necessity for leave under section 2612(a)(1)(F) of this title for the purpose described in subsection (a)(2)(A) is foreseeable, an (d) Restoration to position

(B) The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the (i)

the date that is 12 weeks after the date on which the employee’s leave under section 2612(a)(1)(F) of this title commences.

The Congressional Accountability Act of 1995, referred to in subsec. (a)(1)(A)(ii), is Pub. L. 104–1, Jan. 23, 1995 , 109 Stat. 3, which is classified principally to chapter 24 (§ 1301 et seq.) of Title 2, The Congress . For complete classification of this Act to the Code, see Short Title note under section 1301 of Title 2 and Tables.

This Act, referred to in subsec. (a)(3)(C), is Pub. L. 103–3, Feb. 5, 1993 , 107 Stat. 6, known as the Family and Medical Leave Act of 1993, which enacted this chapter, sections 60m and 60n of Title 2, The Congress , and sections 6381 to 6387 of Title 5, Government Organization andsection 2105 of Title 5, and enacted provisions set out as notes under section 2601 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2601 of this title and Tables.

The Families First Coronavirus Response Act, referred to in subsec. (a)(3)(C), is Pub. L. 116–127, Mar. 18, 2020 , 134 Stat. 178. Division E (§§ 5101–5112) of the Act, known as the Emergency Paid Sick Leave Act, is set out as a note under section 2601 of this title. Division G (§§ 7001–7005) of the Act is set out as notes under sections 1401 and 3111 of Title 26, Internal Revenue Code. For complete classification of this Act to the Code, see Short Title of 2020 Amendment note set out under section 2601 of this title and Tables.

2020—Subsec. (a)(1)(A). Pub. L. 116–136, § 19008(1), which directed amendment of subpar. (A) by inserting cl. (i) designation and heading before “In lieu of”, was not executed due to intervening amendment by Pub. L. 116–136, § 3605, see below.

Pub. L. 116–136, § 3605, amended subpar. (A) generally. Prior to amendment, text read as follows: “In lieu of the definition in sections 2611(2)(A) and 2611(2)(B)(ii) of this title, the term section 2612(a)(1)(F) of this title.”

Subsec. (a)(1)(A)(ii). Pub. L. 116–136, § 19008(2), added cl. (ii) related to special rule regardingPub. L. 116–136, § 3611(1), substituted “553(d)(3)” for “553(d)(A)” in introductory provisions.

Subsec. (b)(2)(B)(ii). Pub. L. 116–136, § 3601, added cl. (ii) and struck out former cl. (ii). Prior to amendment, text read as follows: “In no event shall such paid leave exceed $200 per day and $10,000 in the aggregate.”

Subsec. (c). Pub. L. 116–136, § 3611(3), substituted “subsection (a)(2)(A)” for “subsection (a)(2)(A)(iii)”.

“This Act [div. C of Pub. L. 116–127, enacting this section, amending section 2612 of this title, and enacting provisions set out as notes under this section] shall take effect not later than 15 days after the date of enactment of this Act [ Mar. 18, 2020 ].”

An Family and Medical Leave Act of 1993 [29 U.S.C. 2620(b)(2)], as added by the Families First Coronavirus Response Act [Pub. L. 116–127], by making contributions to a multiemployer fund, plan, or program based on the paid leave each of itsFamily and Medical Leave Act of 1993 [29 U.S.C. 2612(a)(1)(F)], as added by the Families First Coronavirus Response Act.

Employees who work under a multiemployer collective bargaining agreement into which their Family and Medical Leave Act of 1993, as added by the Families First Coronavirus Response Act.”

“An Family and Medical Leave Act of 1993 [29 U.S.C. 2620(a)(1)(B)] shall not be subject to section 107(a) of such Act [29 U.S.C. 2617(a)] for a violation of section 102(a)(1)(F) of such Act [29 U.S.C. 2612(a)(1)(F)] if the29 U.S.C. 2611(4)(A)(i)].”