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

(a) Definitions. These rules apply to leave under section 2612(a)(1)(F). (1) Certain terms. Section 2611 definitions apply, except: (A) Eligible employee^*. (i) Instead of section 2611(2)(A) and (2)(B)(ii), an eligible employee is one employed by the relevant employer^* for at least 30 calendar days. (ii) “Employed for at least 30 calendar days” includes a person^* laid off by that employer no earlier than March 1, 2020, who worked there at least 30 of the 60 calendar days before layoff and was rehired. This section does not define the quoted term. A special rule for the Congressional Accountability Act treats a covered employee employed by the relevant employing office for at least 30 calendar days as eligible. (B) Employer threshold. Section 2611(4)(A)(i) applies by replacing its stated employee threshold with “fewer than 500 employees.” (2) Additional definitions. (A) “Qualifying need related to a public health emergency” means the employee cannot work or telework because the employee needs leave to care for the employee’s child under 18 when the school or place of care is closed, or the child-care provider is unavailable, because of a public health emergency. This section does not otherwise define the quoted term. (B) “Public health emergency” means a COVID-19 emergency declared by a Federal, State^*, or local authority. (C) “Child care provider” means a regularly compensated child-care provider, including an “eligible child care provider” as defined in section 9858n of title 42. This section does not define the quoted term. (D) “School” means an “elementary school” or “secondary school” as defined in section 7801 of title 20. This section does not define those quoted terms. (3) Regulatory authority. For good cause under sections 553(b)(B) and 553(d)(3) of title 5, the Secretary^* of Labor may issue regulations to (A) exclude certain health-care providers and emergency responders from eligible-employee status; (B) exempt businesses with fewer than 50 employees when the requirements would jeopardize the business’s continued viability; and (C) carry out this Act, including consistency with Divisions E and G of the Families First Coronavirus Response Act. (4) The Office of Management and Budget Director may, for good cause, exclude certain United States Government employers from subsection (b) requirements for certain Executive Branch employee categories. (b) Relationship to paid leave. (1) First 10 days unpaid. (A) The first 10 leave days may be unpaid. (B) The employee may choose to use accrued vacation, personal, medical, or sick leave instead, as section 2612(d)(2)(B) allows. (2) Later days paid. (A) The employer must provide paid leave for each leave day after the first 10. (B)(i) Subject to (ii), pay must be based on at least two-thirds of the employee’s regular rate under section 207(e), multiplied by the hours the employee normally would have worked or the hours calculated under (C). (ii) The employer need not pay more than $200 per day or $10,000 total per employee. (C) If the schedule varies so much that the employer cannot know the hours the employee would have worked, use (i) the average hours scheduled per day over the preceding 6 months, including hours of any leave, or (ii) if the employee did not work during that period, the reasonable expectation at hiring of the average daily hours normally scheduled. (c) Notice. If the need for this leave and the purpose in (a)(2)(A) are foreseeable, the employee must give as much practicable notice. (d) Restoration. (1) Section 2614(a)(1) does not apply to an employee of an employer with fewer than 25 employees if paragraph (2) applies. (2) The conditions are: (A) the employee takes this leave; (B) the employee’s position no longer exists because of economic or other operating changes affecting employment and caused by a public health emergency during the leave; (C) the employer reasonably tries to restore the employee to an equivalent position with equivalent benefits, pay, and other terms; and (D) if those efforts fail, the employer reasonably tries during paragraph (3)’s period to contact the employee if an equivalent position becomes available. (3) That contact period is the one-year period beginning on the earlier of (A) the date the qualifying need ends or (B) 12 weeks after the leave begins.