On March 18, 2020, the President signed the Families First Coronavirus Response Act (H.R. 6201), with the goal of providing initial and immediate relief to American workers and families in the wake of the coronavirus pandemic. One portion of the new law is the Emergency Family and Medical Leave Expansion Act which amends the provisions of the Family Medical Leave Act, expanding them on a temporary basis.
EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT
Effective Date: Effective April 2, 2020 and expiring on December 31, 2020.
Covered Employers: Any employer with fewer than 500 employees. It is not entirely clear how the 500 employee threshold is calculated. However, we believe it is reasonable to believe the Department of Labor would apply the integrated employer test used from the FLSA and/or FMLA.
Eligible Employee: Any full-time or part-time employee who has been on the employer’s payroll for 30 calendar days. However, the law allows employers to exclude employees who are health care providers or emergency responders from this EFMLEA entitlement. Additional guidance on parameters for determining the definition of eligible employees and health care providers is expected soon.
Reasons for EFMLEA Leave: Eligible employees are entitled to take up to 12 weeks of FMLA leave for “a qualifying need related to a public health emergency.” “Qualifying need” is limited to situations in which an employee is unable to work (or telework) to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency.
How Much Pay is Required during EFMLEA Leave?
- The first 10 days (two weeks) are unpaid, but an employee may choose to substitute accrued paid leave, including emergency paid sick leave. There is some question whether an employer can require an employee to use accrued paid leave during this 10-day period, however reference is made to a provision of the FMLA allowing the employer to require the use of accrued paid leave.
- The remaining 10 weeks are paid at 2/3 of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work (with a maximum payment of $200 per day and $10,000 total).
Small Employers Can’t Be Sued: The law appears to exempt employers with fewer than 50 employees from civil FMLA damages in an FMLA lawsuit, thereby shielding smaller employers from being liable for back pay or liquidated damages.
Restoration to Position after Leave Ends: EFMLEA leave is job-protected, which means employers are required to restore an employee to the same or equivalent position upon their return to work. The new law provides for an exception to this requirement for employers with fewer than 25 employees, if the employee’s position no longer exists following leave due to operational changes occasioned by a public health emergency (e.g., a material downturn in business caused by the COVID-19 pandemic), subject to certain conditions. Notably, if the small employer does not return the employee because of operational changes, the employer must make reasonable efforts to contact a displaced employee for up to one year after they are displaced if an equivalent position becomes available.
Tax credits: A series of refundable tax credits will be available for employers providing paid emergency sick leave or paid EFMLEA, including tax relief for self-employed individuals, including a refundable tax credit for employers equal to 100% of qualified family leave wages required to be paid by the EFMLEA that are paid by an employer for each calendar quarter.
We know the federal and state response to COVID-19 will significantly intersect with your businesses. We are monitoring both federal and state bills and administrative guidance closely and will do our best to keep you informed during these trying times. Meanwhile, if you have any questions on these new regulations, please contact Jennifer Weaver, Will Cherry or your Manning Fulton relationship attorney.