Emergency Family and Medical Leave Act
The Act expands the Family and Medical Leave Act (“FMLA”) to private-sector employers with
fewer than 500 employees
and covered public-sector employers. Those employers must provide up to 12 weeks of job-protected FMLA leave for “a qualifying need related to a public health emergency”, which the Act defines as limited to circumstances where an employee is unable to work (or telework) due to a need 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. The leave is limited to employees who have been on payroll for 30 calendar days.
The first 10 days of the FMLA leave can be unpaid. An employee may choose to substitute accrued vacation, PTO, or sick leave during this time, but an employer may not require an employee to do so.
The remaining 10 weeks of FMLA leave must be paid by the employer at no less than two-thirds of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work. The Act caps the amount of required pay for leave to no more than $200/day ($10,000 in the aggregate.)
Jobs are generally protected during FMLA leave, meaning the employer must restore the employee to their prior position or an equivalent position upon return to work. The Act includes an exception to this requirement for employers with fewer than 25 employees, if the employee takes the leave and the position held by the employee when the leave commenced ceases to exist due to the impact of COVID-19, for instance downturn in business due to the pandemic.
Again, the Act gives the Secretary of Labor the authority to exempt businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business. The Act also expressly provides that employers may exclude employees who are health care providers or emergency responders from this emergency FMLA entitlement.
Further, the Act excludes civil FMLA damages in an employee-initiated lawsuit against an employer that does 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.
These provisions will sunset on December 31, 2020.
Tax Credits and Other Efforts
The Act includes refundable tax credits for employers that are required to offer emergency FMLA or paid sick leave, including self-employed individuals. The credit is limited to the amounts that employer is required to pay during Q2-Q4 of 2020:
- $511/day per employee, with an aggregate of $5,110, if qualified sick leave was taken by the employee for their own needs or $200/day per employee, with an aggregate of $2,000, if qualified sick leave was taken to provide care for others.
- $200/day per employee, with an aggregate $10,000 cap per employee, if taken for qualified family medical leave.
Additional Impact on Businesses
The Act’s exclusion of certain workers, including those who work for large corporations, health care workers and emergency responders, along with the high costs it imposes on small businesses have advocates on both sides looking for more relief. Congress is currently considering further economic relief packages, including a suspension of the payroll tax. We will keep you posted on any additional legislation.