Emergency Paid Sick Leave and FMLA coverage

On March 18, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. That law added two new emergency benefits that employees are eligible for from smaller employers (under 500 employees). These benefits will be offset by a corresponding tax credit taken as a deduction on your quarterly social security tax payments. If the tax credit would exceed an employer’s tax liability, the IRS will treat it as an overpayment and send taxpayers a refund. The law will took effect on April 1. Please note, any benefits paid to employees prior to the April 1 effective date will not be eligible for tax credits.

Department of Labor FAQs: An extremely helpful document put out by the U.S. Department of Labor – Families First Coronavirus Response Act FAQs.

NEW posting requirement: FFCRA requires employers post this poster in workplaces: Employee Rights Paid Sick Leave and Expanded FMLA under the Families First Coronavirus Response Act. Employers with employees teleworking or working from home are encouraged to post the notice on their website and/or send it to employees via email.

Emergency Paid Sick Leave

• All companies with under 500 employees must provide eligible employees with 80 hours (10 days) of paid sick leave related to coronavirus.
  • The law includes a provision to allow the U.S. Secretary of Labor to exempt employers with fewer than 50 employees from the requirements if it would jeopardize the viability of the business. (No exemption has happened yet.)
• Eligible employees are:
  1. Subject to a federal, state or local quarantine.
  2. Being advised by a healthcare provider to self-quarantine.
  3. Experiencing symptoms and seeking diagnosis.
  4. Caring for an individual who is subject to a quarantine (above reasons #1-2).
  5. Caring for a son or daughter whose school closed due to coronavirus and childcare providers are unavailable.
  6. Suffering from any substantially similar condition as laid out by the U.S. Secretary of Health and Human Services.
• All current employees may be eligible. There is no waiting period of how long they must be employed before they are eligible for emergency paid sick leave.
• Employers may not require employees to find replacement workers to cover their hours while they take emergency paid sick leave.
• Benefits are in addition to any sick leave the employer already offers.
  • The employer cannot require an employee to take vacation or sick leave before using emergency paid sick leave.
• Benefit breakdown:
  • Employees that meet the above conditions #1-3 (if the employee was told to self-quarantine or is experiencing symptoms).
    • Calculated at an employee’s regular rate of pay and the number of hours they would normally be scheduled to work not to exceed $511 per day ($5,110 max).
    • The tax credit only covers up to $511 per day/ $5,110 max. If the employer compensates them above $511/day there is no reimbursement from the government.
  • Employees that meet the above conditions #4-6 (if the employee is taking care of someone else).
    • Calculated at two-thirds an employee’s regular rate of pay and the number of hours they would normally be scheduled to work not to exceed $200 per day ($2,000 max).
    • The tax credit only covers up to $200 per day/ $2,000 max. If the employer compensates an employee above $200/day there is no reimbursement from the government.
  • Benefits are only available to employees through Dec. 31, 2020.
• Laid off employees:
  • There is no financial or other reimbursement required from an employer for an employee upon their termination, resignation, retirement or other separation from employment.
• Retaliation prohibited:
  • Employers may not discharge, discipline, or discriminate against any employee who takes emergency paid sick leave.

Emergency FMLA

• All companies with under 500 employees must provide eligible employees with 12 total weeks of leave. Employees are eligible if they are unable to work (or telework) because they have a son or daughter under 18 who requires care due to school closures or childcare-related closures (paid childcare facilities) due to coronavirus.
  • The law includes a provision to allow the U.S. Secretary of Labor to exempt employers with fewer than 50 employees from the requirements if it would jeopardize the viability of the business. (No exemption has happened yet.)
• Eligible employees are:
  • Employees who have worked for the company for at least 30 days.
  • Unable to work (or telework) because they have a son or daughter under 18 who requires care due to school closures or childcare-related closures (paid childcare facilities) due to coronavirus.
• Benefit breakdown:
  • First two weeks of leave can be unpaid.
    • Most employees will take the first 10 days as emergency paid sick leave.
  • Next 10 weeks is paid leave.
    • Calculated at two-thirds an employee’s regular rate of pay and the number of hours they would normally be scheduled to work not to exceed $200 per day and $10,000 total.
      • Tax credit is $200 per day ($10,000 max).
    • Benefits are only available to employees through Dec. 31, 2020.
  • Emergency FMLA coverage does not impact regular FMLA coverage:
    • If an employee is sick, or caring for a parent, they can still take 12 weeks of regular, unpaid leave under FMLA in addition to Emergency FMLA.
  • Return to work:
    • Employers must return the employee to the same or similar position and pay upon their return to work
      • This does not apply to employers with fewer than 25 employees who have eliminated the position held by the employee during the Emergency FMLA leave due to economic reasons related to coronavirus. They must, however, make the former employee aware if a similar position becomes available.
    • Laid off employees:
      • There is no financial or other reimbursement required from an employer for an employee upon their termination, resignation, retirement or other separation from employment.