PRESIDENT SIGNS CORONAVIRUS RELIEF PACKAGE PROVIDING EXPANSION OF FAMILY AND MEDICAL LEAVE ACT PLUS NEW SICK LEAVE MANDATES
BILL INCLUDES CAPS AND COMPENSATORY TAX CREDITS FOR SMALL/MIDSIZE BUSINESS
The President signed the “Families First Coronavirus Response Act” (“FFCRA”) providing for Emergency Family and Medical Leave Expansion and Emergency Paid Sick Leave, which shall take effect no later than 15 days after enacted (April 2, 2020) and will expire on December 31, 2020. Employers must be ready to implement these new mandates.
Because of the imminent effective date, complexity of the benefits and the need to implement its mandates, Tripp Scott encourages our clients to seek legal advice regarding their additional responsibilities under the legislation. Below are answers to general questions pertaining to various topics covered by the FFCRA.
Emergency Family and Medical Leave Expansion Act
Which employers are covered?
The Emergency Family and Medical Leave Expansion Act applies to employers with fewer than 500 employees (instead of employers with 50 or more employees). This means that employers who were not previously subject to the Family Medical Leave Act will be impacted.
Which employees are eligible to benefit from the “Emergency Family and Medical Leave Expansion Act”?
To be an eligible employee, the employee would have to be employed for at least 30 calendar days. The requirement that the employee have been employed for 12 months, worked at least 1,250 hours, and worked at a location where there were at least 50 employees within 75 miles is not applicable.
Are there any exemptions under the “Emergency Family and Medical Leave Expansion Act”?
Although no exemptions have been published as of the date of this article, the Secretary of Labor is allowed to exempt:
• healthcare providers and emergency responders from the definition of eligible employees
• small businesses with fewer than 50 employees from these requirements when the requirements would jeopardize the viability of the business as a going concern.
What circumstances require employers to provide leave under the “Emergency Family and Medical Leave Expansion Act”?
Employers must provide emergency leave under the Emergency Family and Medical Leave Expansion Act as follows:
• 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 provider of such son or daughter is unavailable, due to a public health emergency and the employee is unable to work or work remotely.
How long must an employer grant leave under the “Emergency Family and Medical Leave Expansion Act”?
The first 10 days of emergency leave may be unpaid and the employee may elect to use all or part of his or her accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. Employers may not require employees to make such election. Employees may take up to 12 weeks of job-protected leave.
After the employee takes the initial 10 days of leave which are not required to be paid, the employer shall provide paid leave in an amount that is not less than 2/3 of the employee’s regular rate of pay based on the number of hours the employee would otherwise be normally scheduled to work. There is also a provision providing for the calculation of paid leave for employees working a variable schedule.
In no event shall such paid leave exceed $200 per day and $10,000 in the aggregate.
Does the employee have to provide notice to its employer?
In any case where the necessity for leave is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.
Does the employer have a duty to restore the employee’s position after the leave?
The law requires that certain employers provide for protections for employees to be restored to their position.
Emergency Paid Sick Leave
Which employers are obligated to pay Emergency Paid Sick Leave?
Employers with fewer than 500 employees must provide Emergency Paid Sick Leave to employees to full-time and part-time employees.
Which employees are eligible for paid sick leave?
An employer shall provide paid sick time for the following reasons:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
(6) The employee is 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.
How much paid sick leave are employers required to pay?
Full-time employees are entitled to 2 weeks (80 hours) Part-time employees are entitled to the average number of hours they work over a 2-week period.
An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time.
Does the sick leave require employer to carry over?
Paid sick time under this section shall not carry over from 1 year to the next.
Is there any tax relief for employers?
Tax relief for employers is available, subject to certain limitations:
• refundable tax credits to cover the employers’ costs (including the business’s share of payroll taxes) for wages paid in connection to sick and FMLA leave, subject to certain limitations- this means that the employer must pay the employee and then apply for the tax credit.
• both the amounts for which employers are liable for sick leave wages and the tax credits are subject to caps depending on whether they are for employees themselves ($511 a day) or for caring for others ($200 a day).
NOTE: THE INFORMATION PROVIDED IN THIS TRIPP SCOTT SPECIAL REPORT DOES NOT CONSTITUTE LEGAL ADVICE.