The president signed into legislation the Emergency Family and Medical Leave Act (FMLA) on March 18, 2020. These temporary leave provisions will go into effect on April 2 until December 31, 2020.

The new temporary legislation expanded the inclusion of more employers. This requirement used to include only employers with 50 or more employees, but now the wording has changed to employers with fewer than 500 employees.

In general, a full-time employee is entitled to 80 hours of paid sick time and part-time employees are entitled to the typical number of hours they are scheduled to work in a two-week period. Now, the wording has changed to “any individual employed by the employer 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.

Who qualifies? Any individual employed by the employer for at least 30 days (It used to be 1 year) and the Act now 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;
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.

Although the Act allows up to 12 weeks of leave, the first segment of emergency FMLA leave (2 weeks = 10 days) can be unpaid (it used to be 14 days). An employee can opt to substitute accrued vacation, personal, or sick leave during this time, but an employer may not require an employee to do so.

The remaining 10 weeks of FMLA leave is required to be paid, either at 100% of the regular hourly rate or at no less than two-thirds (60%) of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work. The bill limits an employer’s requirement of paid leave to $511 per day ($5,110 in the aggregate = Top) where leave is taken for reasons (1), (2), and (3) noted above (generally, an employee’s own illness or quarantine); and $200 per day ($2,000 in the aggregate = Top) where leave is taken for reasons (4), (5), or (6) (care for others or school closures).

Job Restoration: Employers with 25 or more employees will 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.

Legal Aspects: The bill includes a prohibition on retaliating against any employee who takes leave in accordance with the new law. The bill further provides that the failure to pay required sick leave will be treated as a failure to pay minimum wages in violation of the Fair Labor Standards Act.

Further, the bill excludes from civil FMLA damages in an employee-initiated lawsuit against employers that do not employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.

Tax Credits: The good news it that employers who are required to provide the Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave will be reimbursed by the government or have tax credits allowed against the employer portion of Social Security taxes. 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.

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