Families First – Emergency Family and Medical Leave Expansion

·        Expanded Coverage and Eligibility – The Act significantly amended and expanded FMLA on a temporary basis. The current employee threshold for FMLA coverage changed from only covering employers with 50 or more employees to instead covering those employers with fewer than 500 employees. It also lowered the eligibility requirement such that any employee who has worked for the employer for at least 30 days prior to the designated leave is eligible to receive paid family and medical leave (under qualifying conditions). The law allows the Secretary of Labor to exclude healthcare providers and emergency responders from the definition of employees who are allowed to take such leave, and to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business. 

• Reasons for Emergency Paid FMLA Leave – Any individual employed by the employer for at least 30 days (before the first day of leave) may take up to 12 weeks of job-protected leave to allow an employee, who is unable to work or telework, to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. This is the only qualifying need for Emergency FMLA . 
• Paid Leave – The first 2 weeks of Emergency FMLA may be unpaid. During this 10-day period, an employee may elect to substitute any accrued paid leave (like vacation or sick leave) to cover some or all of the 10-day unpaid period. After the 10-day period, the employer generally must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. The law limits this pay entitlement to $200 per day and $10,000 in the aggregate per employee. 
• Calculating Pay for Non-Full Time Employees – Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work. 
• Job Restoration – Employers with 25 or more employees have the same obligation as under traditional FMLA to return any employee who has taken Emergency FMLA to the same or equivalent position upon the return to work. However, employers with fewer than 25 employees are generally excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downtown or other circumstances caused by a public health emergency during the period of Emergency FMLA. This exclusion is subject to the employer making reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the employee’s leave.
• Effective Date and Expiration – This program became effective April 1, 2020 and remains in effect until December 31, 2020. 

Emergency Paid Sick Leave

·        Reasons for Paid Sick Leave –This law allows an eligible employee to take paid sick leave because the employee is: 

1.  subject to a federal, state or local quarantine or isolation order related to COVID-19; 

2.  advised by a health care provider to self-quarantine due to COVID-19 concerns; 

3.  experiencing COVID-19 symptoms and seeking medical diagnosis; 

4.  caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns; Caring for another who is subject to an isolation order or advised to self-quarantine as described above is not limited to just family members.   

5.  caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or 

6.  experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

·        Eligibility – This provision requires employers to provide full-time employees (regardless of the employee’s duration of employment prior to leave) with up to 80 hours of paid sick leave at the employee’s regular rate (or two-thirds the employee’s regular rate to care for qualifying reasons 4, 5, or 6 listed above). There is an exception for employers who are healthcare providers or emergency responders at their election.

• Cap on Paid Sick Leave Wages –Paid sick leave wages are limited to $511 per day up to $5,110 total per employee for their own use and to $200 per day up to $2,000 total to care for others and any other substantially similar condition.
• Carryover and Interaction with Other Paid Leave – This paid sick leave will not carry over to the following year and may be in addition to any paid sick leave currently provided by employers.
• Calculating Rate of Pay – Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking paid sick leave. Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work over a two-week period.
• Effective Date and Expiration – This program became effective April 1, 2020 and remains in effect until December 31, 2020. 

Tax Credits For Paid Sick And Paid Family And Medical Leave

The law provides a series of refundable tax credits for employers who are required to provide the Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave described above. These tax credits are allowed against the employer portion of Social Security taxes. While this limits application of the tax credit, employers will be reimbursed if their costs for qualified sick leave or qualified family leave wages exceed the taxes they would owe.

Specifically, employers are entitled to a refundable tax credit equal to 100% of the qualified sick leave wages paid by employers for each calendar quarter in adherence with the Emergency Paid Sick Leave Act. The qualified sick leave wages are capped at $511 per day ($200 per day if the leave is for caring for a family member or child) for up to 10 days per employee in each calendar quarter. 

Similarly, employers are entitled to a refundable tax credit equal to 100% of the qualified family leave wages paid by employers for each calendar quarter in accordance with the Emergency Family and Medical Leave Expansion Act. The qualified family leave wages are capped at $200 per day for each individual up to $10,000 total per calendar quarter. Only those employers who are required to offer Emergency FMLA and Emergency Paid Sick Leave may receive these credits.