UPDATED AS OF APRIL 6, 2020.
There’s a new law that has been passed in response to COVID-19: Families-First Coronavirus Response Act.
In short, what does this mean? Be prepared to provide “Emergency Paid Sick Leave” and “Emergency FMLA (Family Medical Leave Act) Expansion” effective 4/1/2020 which will last to 12/31/2020.
Here’s the gist of it…and I did my best to simplify it as much as possible…
What size employers does this affect?
*Employers with less than 50 employees are eligible for an exemption. Please see the exemption qualifications at the end of this article.
There are two parts:
Part One: Emergency Paid Sick Leave Act
Who is eligible?
All employees of employers with fewer than 500 employees, regardless of how long they have been with their employer, are eligible for this paid sick leave.
An eligible employee may take paid sick leave if he/she is unable to work (including telework) if the employee:
Paid Sick Leave Benefit:
*There is the clarification from the DOL on how to count part-time hours at the end of this article.
Employers will be required to post a notice that will be provided by the Secretary of Labor 3/25. Spanish version here.
Part Two: Emergency FMLA Expansion Act
The Families First Coronavirus Response Act also includes the Emergency Family and Medical Leave Expansion Act (the “FMLA Expansion Act”). It provides eligible employees who have children whose schools or place of care has closed due to COVID-19.
Who is eligible?
All employees of employers with fewer than 500 employees, who have worked at least 30 days with that employer, are eligible.
Emergency FMLA Expansion Benefit
Job Protection Under Emergency FMLA Expansion
Putting those two together (Emergency Paid Sick Leave & Emergency FMLA Expansion)
Quarantine will not trigger the Emergency FMLA leave provisions (only the sick pay), although there may be traditional, unpaid FMLA leave rights available, as well as unemployment insurance.
Tax Credits per the IRS Guidelines
Employers will be provided refundable tax credits against their part of Social Security Taxes for 100% of the qualified sick leave and wages paid for this Act.
Per the IRS Guidelines Question 44:
An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:
In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.
Again, note this goes into effect on April 1, 2020. If you have questions regarding this please do not hesitate to reach out.
If you’d like to read the Act in its entirety (there’s more than what applies to employers) go here.
Here’s a link to the Department of Labor’s Families First Paid Leave Requirements and FAQs as well as their required poster (Spanish here).
In helpfulness and good health,
LeiLani
Small Business Exemption Guidelines
Per the Department of Labor’s Q&A Sheet Questions #58 and #59:
#58 When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?
An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
#59 If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?
A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:
The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.
How to count part-time hours Department of Labor’s Q&A Sheet:
How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.
If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.
Want to see everything we offer with complete pricing? Fill out the form below and we will email you our brochure.