29 U.S.C. § 2620 — Public health emergency leave

Page 789 TITLE 29—LABOR § 2620 1 So in original. Two cls. (ii) have been enacted. (e) Restoration to equivalent employment posi- tion For purposes of determinations under section 2614(a)(1)(B) of this title (relating to the restora- tion of an eligible employee to an equivalent po- sition), in the case of a local educational agency or a private elementary or secondary school, such determination shall be made on the basis of established school board policies and practices, private school policies and practices, and collec- tive bargaining agreements. (f) Reduction of amount of liability If a local educational agency or a private ele- mentary or secondary school that has violated this subchapter proves to the satisfaction of the court that the agency, school, or department had reasonable grounds for believing that the underlying act or omission was not a violation of this subchapter, such court may, in the dis- cretion of the court, reduce the amount of the liability provided for under section 2617(a)(1)(A) of this title to the amount and interest deter- mined under clauses (i) and (ii), respectively, of such section. (Pub. L. 103–3, title I, § 108, Feb. 5, 1993, 107 Stat. 17; Pub. L. 103–382, title III, § 394(e), Oct. 20, 1994, 108 Stat. 4027; Pub. L. 107–110, title X, § 1076(v), Jan. 8, 2002, 115 Stat. 2093; Pub. L. 110–181, div. A, title V, § 585(a)(3)(H), Jan. 28, 2008, 122 Stat. 131; Pub. L. 114–95, title IX, § 9215(hh), Dec. 10, 2015, 129 Stat. 2175.) Editorial Notes REFERENCES IN TEXT The Individuals with Disabilities Education Act, re- ferred to in subsec. (b), is title VI of Pub. L. 91–230, Apr. 13, 1970, 84 Stat. 175, which is classified generally to chapter 33 (§ 1400 et seq.) of Title 20, Education. For complete classification of this Act to the Code, see sec- tion 1400 of Title 20 and Tables. The Civil Rights Act of 1964, referred to in subsec. (b), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VI of the Act is classified generally to subchapter V (§ 2000d et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables. AMENDMENTS 2015—Subsec. (a)(1)(A). Pub. L. 114–95 made technical amendment to reference in original act which appears in text as reference to section 7801 of title 20. 2008—Subsecs. (c)(1), (d)(2), (3). Pub. L. 110–181 in- serted ‘‘or under section 2612(a)(3) of this title’’ after ‘‘section 2612(a)(1) of this title’’. 2002—Subsec. (a)(1)(A). Pub. L. 107–110 substituted ‘‘section 7801 of title 20’’ for ‘‘section 8801 of title 20’’. 1994—Subsec. (a)(1)(A). Pub. L. 103–382 substituted ‘‘section 8801 of title 20’’ for ‘‘section 2891(12) of title 20’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2015 AMENDMENT Amendment by Pub. L. 114–95 effective Dec. 10, 2015, except with respect to certain noncompetitive pro- grams and competitive programs, see section 5 of Pub. L. 114–95, set out as a note under section 6301 of Title 20, Education. EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–110 effective Jan. 8, 2002, except with respect to certain noncompetitive pro- grams and competitive programs, see section 5 of Pub. L. 107–110, set out as an Effective Date note under sec- tion 6301 of Title 20, Education. EFFECTIVE DATE Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agree- ment, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title. § 2619. Notice (a) In general Each employer shall post and keep posted, in conspicuous places on the premises of the em- ployer where notices to employees and appli- cants for employment are customarily posted, a notice, to be prepared or approved by the Sec- retary, setting forth excerpts from, or sum- maries of, the pertinent provisions of this sub- chapter and information pertaining to the filing of a charge. (b) Penalty Any employer that willfully violates this sec- tion may be assessed a civil money penalty not to exceed $100 for each separate offense. (Pub. L. 103–3, title I, § 109, Feb. 5, 1993, 107 Stat. 19.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agree- ment, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title. § 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: (A) Eligible employee (i) In general In lieu of the definition in sections 2611(2)(A) and 2611(2)(B)(ii) of this title, the term ‘‘eligible employee’’ means an em- ployee who has been employed for at least 30 calendar days by the employer with re- spect to whom leave is requested under section 2612(a)(1)(F) of this title. (ii) 1 Rule regarding rehired employees For purposes of clause (i), the term ‘‘em- ployed for at least 30 calendar days’’, used with respect to an employee and an em- ployer described in clause (i), includes an employee who was laid off by that em- ployer not earlier than March 1, 2020, had worked for the employer for not less than Page 790 TITLE 29—LABOR § 2620 30 of the last 60 calendar days prior to the employee’s layoff, and was rehired by the employer. (ii) 1 Special rule 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 ‘‘eligi- ble employee’’ means a covered employee (as defined in section 101 of that Act (2 U.S.C. 1301)) who has been employed for at least 30 calendar days by the employing of- fice (as so defined) with respect to whom leave is requested under section 2612(a)(1)(F) of this title. (B) Employer threshold Section 2611(4)(A)(i) of this title shall be applied by substituting ‘‘fewer than 500 em- ployees’’ for ‘‘50 or more employees for each working day during each of 20 or more cal- endar workweeks in the current or preceding calendar year’’. (2) Additional definitions In addition to the definitions described in paragraph (1), the following definitions shall apply with respect to leave under section 2612(a)(1)(F) of this title: (A) Qualifying need related to a public health emergency The term ‘‘qualifying need related to a public health emergency’’, with respect to leave, means the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care pro- vider of such son or daughter is unavailable, due to a public health emergency. (B) Public health emergency The term ‘‘public health emergency’’ means an emergency with respect to COVID–19 declared by a Federal, State, or local authority. (C) Child care provider The term ‘‘child care provider’’ means a provider who receives compensation for pro- viding child care services on a regular basis, including an ‘‘eligible child care provider’’ (as defined in section 9858n of title 42). (D) School The term ‘‘school’’ means an ‘‘elementary school’’ or ‘‘secondary school’’ as such terms are defined in section 7801 of title 20. (3) Regulatory authorities The Secretary of Labor shall have the au- thority to issue regulations for good cause under sections 553(b)(B) and 553(d)(3) of title 5— (A) to exclude certain health care pro- viders and emergency responders from the definition of eligible employee under sub- section (a)(1)(A); (B) 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 jeop- ardize the viability of the business as a going concern; and (C) as necessary to carry out the purposes of this Act, including to ensure consistency between this Act and Division E and Divi- sion G of the Families First Coronavirus Re- sponse Act. (4) The Director of the Office of Management and Budget shall have the authority to ex- clude for good cause from the requirements under subsection (b) certain employers of the United States Government with respect to cer- tain categories of Executive Branch employ- ees. (b) Relationship to paid leave (1) Unpaid leave for initial 10 days (A) In general The first 10 days for which an employee takes leave under section 2612(a)(1)(F) of this title may consist of unpaid leave. (B) Employee election 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 accord- ance with section 2612(d)(2)(B) of this title. (2) Paid leave for subsequent days (A) In general An employer shall provide paid leave for each day of leave under section 2612(a)(1)(F) of this title that an employee takes after taking leave under such section for 10 days. (B) Calculation (i) In general Subject to clause (ii), paid leave under subparagraph (A) for an employee shall be calculated based on— (I) 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 (II) the number of hours the employee would otherwise be normally scheduled to work (or the number of hours cal- culated under subparagraph (C)). (ii) Limitation An employer shall not be required to pay more than $200 per day and $10,000 in the aggregate for each employee for paid leave under this section. (C) Varying schedule hours calculation In the case of an employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the em- ployee would have worked if such employee had not taken leave under section 2612(a)(1)(F) of this title, the employer shall use the following in place of such number: (i) 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 Page 791 TITLE 29—LABOR § 2620 which the employee takes such leave, in- cluding hours for which the employee took leave of any type. (ii) 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. (c) Notice 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 fore- seeable, an employee shall provide the employer with such notice of leave as is practicable. (d) Restoration to position (1) In general Section 2614(a)(1) of this title shall not apply with respect to an employee of an employer who employs fewer than 25 employees if the conditions described in paragraph (2) are met. (2) Conditions The conditions described in this paragraph are the following: (A) The employee takes leave under sec- tion 2612(a)(1)(F) of this title. (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 employer— (i) that affect employment; and (ii) are caused by a public health emer- gency during the period of leave. (C) The employer makes reasonable efforts to restore the employee to a position equiva- lent to the position the employee held when the leave commenced, with equivalent em- ployment benefits, pay, and other terms and conditions of employment. (D) If the reasonable efforts of the em- ployer under subparagraph (C) fail, the em- ployer makes reasonable efforts during the period described in paragraph (3) to contact the employee if an equivalent position de- scribed in subparagraph (C) becomes avail- able. (3) Contact period The period described under this paragraph is the 1-year period beginning on the earlier of— (A) the date on which the qualifying need related to a public health emergency con- cludes; or (B) 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. (Pub. L. 103–3, title I, § 110, as added Pub. L. 116–127, div. C, § 3102(b), Mar. 18, 2020, 134 Stat. 189; Pub. L. 116–136, div. A, title III, §§ 3601, 3604(a), 3605, 3611(1), (3), (7), div. B, title IX, § 19008, Mar. 27, 2020, 134 Stat. 410, 411, 414, 415, 579.) Editorial Notes REFERENCES IN TEXT The Congressional Accountability Act of 1995, re- ferred to in subsec. (a)(1)(A)(ii), is Pub. L. 104–1, Jan. 23, 1995, 109 Stat. 3, which is classified principally to chap- ter 24 (§ 1301 et seq.) of Title 2, The Congress. For com- plete 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 sec- tions 6381 to 6387 of Title 5, Government Organization and Employees, amended section 2105 of Title 5, and en- acted 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, re- ferred 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 sec- tions 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 sec- tion 2601 of this title and Tables. AMENDMENTS 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 ‘eligible employee’ means an em- ployee who has been employed for at least 30 calendar days by the employer with respect to whom leave is re- quested under 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 regarding eligible employ- ees. Subsec. (a)(3). Pub. L. 116–136, § 3611(1), substituted ‘‘553(d)(3)’’ for ‘‘553(d)(A)’’ in introductory provisions. Subsec. (a)(3)(C). Pub. L. 116–136, § 3611(7), added sub- par. (C). Subsec. (a)(4). Pub. L. 116–136, § 3604(a), added par. (4). 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 ‘‘sub- section (a)(2)(A)’’ for ‘‘subsection (a)(2)(A)(iii)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 116–127, div. C, § 3106, Mar. 18, 2020, 134 Stat. 192, provided that: ‘‘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].’’ EMPLOYMENT UNDER MULTI-EMPLOYER BARGAINING AGREEMENTS Pub. L. 116–127, div. C, § 3103, Mar. 18, 2020, 134 Stat. 192, provided that: ‘‘(a) EMPLOYERS.—An employer signatory to a multi- employer collective bargaining agreement may, con- sistent with its bargaining obligations and its collec- tive bargaining agreement, fulfill its obligations under section 110(b)(2) of title I of the 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 its employees is entitled to under such section while working under the multiemployer collective bargaining agreement, provided that the fund, plan, or program Page 792 TITLE 29—LABOR § 2631 enables employees to secure pay from such fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement for paid leave taken under section 102(a)(1)(F) of title I of the Family and Medical Leave Act of 1993 [29 U.S.C. 2612(a)(1)(F)], as added by the Families First Coronavirus Response Act. ‘‘(b) EMPLOYEES.—Employees who work under a mul- tiemployer collective bargaining agreement into which their employers make contributions as provided in sub- section (a) may secure pay from such fund, plan, or pro- gram based on hours they have worked under the mul- tiemployer collective bargaining agreement for paid leave taken under section 102(a)(1)(F) of title I of the Family and Medical Leave Act of 1993, as added by the Families First Coronavirus Response Act.’’ SPECIAL RULE FOR CERTAIN EMPLOYERS Pub. L. 116–127, div. C, § 3104, Mar. 18, 2020, 134 Stat. 192, as amended by Pub. L. 116–136, div. A, title III, § 3611(4), Mar. 27, 2020, 134 Stat. 414, provided that: ‘‘An employer under section 110(a)(1)(B) of the 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 the employer does not meet the definition of employer set forth in section 101(4)(A)(i) of such Act [29 U.S.C. 2611(4)(A)(i)].’’ SPECIAL RULE FOR HEALTH CARE PROVIDERS AND EMERGENCY RESPONDERS Pub. L. 116–127, div. C, § 3105, Mar. 18, 2020, 134 Stat. 192, provided that: ‘‘An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of the provisions in the amendments made under of [sic] section 3102 of this Act [div. C of Pub. L. 116–127, enact- ing this section and amending section 2612 of this title].’’ SUBCHAPTER II—COMMISSION ON LEAVE § 2631. Establishment There is established a commission to be known as the Commission on Leave (referred to in this subchapter as the ‘‘Commission’’). (Pub. L. 103–3, title III, § 301, Feb. 5, 1993, 107 Stat. 23.) § 2632. Duties The Commission shall— (1) conduct a comprehensive study of— (A) existing and proposed mandatory and voluntary policies relating to family and temporary medical leave, including policies provided by employers not covered under this Act; (B) the potential costs, benefits, and im- pact on productivity, job creation and busi- ness growth of such policies on employers and employees; (C) possible differences in costs, benefits, and impact on productivity, job creation and business growth of such policies on employ- ers based on business type and size; (D) the impact of family and medical leave policies on the availability of employee ben- efits provided by employers, including em- ployers not covered under this Act; (E) alternate and equivalent State enforce- ment of subchapter I with respect to em- ployees described in section 2618(a) of this title; (F) methods used by employers to reduce administrative costs of implementing family and medical leave policies; (G) the ability of the employers to recover, under section 2614(c)(2) of this title, the pre- miums described in such section; and (H) the impact on employers and employ- ees of policies that provide temporary wage replacement during periods of family and medical leave. (2) not later than 2 years after the date on which the Commission first meets, prepare and submit, to the appropriate Committees of Congress, a report concerning the subjects listed in paragraph (1). (Pub. L. 103–3, title III, § 302, Feb. 5, 1993, 107 Stat. 23.) Editorial Notes REFERENCES IN TEXT This Act, referred to in par. (1)(A), (D), 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 sec- tions 6381 to 6387 of Title 5, Government Organization and Employees, amended section 2105 of Title 5, and en- acted 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. § 2633. Membership (a) Composition (1) Appointments The Commission shall be composed of 12 vot- ing members and 4 ex officio members to be appointed not later than 60 days after Feb- ruary 5, 1993, as follows: (A) Senators One Senator shall be appointed by the Ma- jority Leader of the Senate, and one Senator shall be appointed by the Minority Leader of the Senate. (B) Members of House of Representatives One Member of the House of Representa- tives shall be appointed by the Speaker of the House of Representatives, and one Mem- ber of the House of Representatives shall be appointed by the Minority Leader of the House of Representatives. (C) Additional members (i) Appointment Two members each shall be appointed by— (I) the Speaker of the House of Rep- resentatives; (II) the Majority Leader of the Senate; (III) the Minority Leader of the House of Representatives; and (IV) the Minority Leader of the Sen- ate. (ii) Expertise Such members shall be appointed by vir- tue of demonstrated expertise in relevant family, temporary disability, and labor management issues. Such members shall include representatives of employers, in- cluding employers from large businesses and from small businesses.