Please note that this information is current as of the date of this update, based on the available data. As an evolving and fluid situation, there are likely more updates forthcoming as regulatory guidance is expected.
FEDERAL CORONAVIRUS LEGISLATION
Employers will be provided refundable tax credits against their employer portion of Social Security taxes for 100% of the qualified sick leave and family leave wages paid in accordance with the Act.
EMPLOYERS MAY PAY MORE
than the mandated compensation, but they will not receive tax credit relief for this additional compensation.
For non-governmental employers with less than 500 employees, this is a credit equal to 100% of the qualified sick/family leave wages paid, subject to those limits. The credit is further increased by specified health expenses (e.g. employer paid health premiums), plus the 1.45% employer Medicare tax.
This applies to federal employment taxes usually due within a few days of each payroll. This provides the funds needed to pay sick and family leave benefits.
Payments received under these benefits are considered wages but exempt from Employer Social Security taxes. They are subject to Medicare taxes, but the tax credit is increased by the tax amount.
As stipulated within the bill, the mandate is effective until December 31, 2020, which means benefits cannot carry over into the next year, 2021.
The bill which ultimately became law has some clarifications and differences from the original legislation passed by the House.
Emergency Sick Leave:
All eligible employees may use paid sick time beginning on April 2 for the following reasons:
The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
The employee is caring for an individual who is either (1) subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
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;
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.
Employers may not require eligible employees to first use other paid leave provided by the employer before using paid sick leave under the Act, so this leave is in addition to any paid sick leave or PTO currently provided by employers.
Employers may require employees to follow reasonable notice procedures to continue receiving such paid sick time after the first workday (or portion thereof) an employee receives paid sick time under this Act.
In other words, employers may not require employees to provide advance notice prior to the first workday on which the employee takes paid sick leave under the Act.
employer may not require
, as a condition of providing the paid sick time, that an employee search for or find a replacement to cover for the hours during which the employee is using the paid sick time. This is also true under Massachusetts sick leave law.
The payment is calculated based on the employee's "required compensation" (i.e. the employee's regular rate of pay or the federal, state or local minimum wage, whichever is greater) and the number of hours the employee would otherwise be scheduled to work. Pay standards differ in certain situations, such as if an employee is using the time to care for a family member.
Employers must post a notice
that advises employees of their rights under the Act. The Secretary of Labor is required to create a notice by March 25.
We will update you when this becomes available.
There is language allowing regulations to exclude emergency responders and/or businesses with less than 50 employees where the requirements would jeopardize that business as a going concern. But at this time, no such exclusions apply.
Emergency Paid Family Medical Leave:
On a temporary basis, the Emergency FMLA Expansion Act amends the FMLA and creates a new leave entitlement. Even though this is an expansion of the FMLA, the Act’s paid leave requirements do not to apply to employers with 500 or more employees. Only those employers with fewer than 500 employees are impacted.
Under normal circumstances, the Family and Medical Leave Act applies only to employers with 50 or more employees, applies only to employees who have worked for at least 12 months and who had worked at least 1,250 hours during that preceding 12 months, and provides unpaid leave for designated reasons, such as the employees own serious health condition, to care for a family member with a serious health condition, or to care for a newborn infant or an adopted child or foster child placed with the employee.
For FMLA Covered employers, this EFMLA leave would run concurrently with standard FMLA - these leaves are not stacked and do not create a potential for 24-weeks of leave.
For purposes of the new entitlement only
, the Act alters the definition of employer to include all employers with fewer than 500 employees, and expands the definition of a covered employee to include all employees who have worked for covered employers (i.e., those with less than 500 employees) for at least 30 days.
Quarantine will not trigger the Emergency FMLA leave provisions, although there may be traditional, unpaid FMLA leave rights available, as well as unemployment insurance.
Emergency FMLA Leave Only for Child Care Disruption
Earlier versions of the Act provided for additional qualifying situations including an employee’s quarantine, and did not provide for telework,
The revised text only provides for one qualifying condition: An eligible employee may take up to 12 weeks of leave if he/she is unable to work (including telework) because the employee must care for his/her child who is under 18 years of age and whose school or place of care has closed due to the COVID-19 public health emergency.
The Secretary of Labor has the authority to exempt from the Emergency FMLA Expansion Act certain health care providers and emergency responders, and small businesses with fewer than 50 employees if the Act would jeopardize a business’s viability, but
at this time, no such exclusions apply.
Calculating Emergency FMLA Pay
Part-time: Average hours the employee works over a 2-week period
Variable work schedules: Average hours the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave including hours for which the employee took any type of leave. If less than 6-month of work history, a "reasonable expectation of the employee at the time of hiring."
For employers with 25 or more employees
, an employee returning from expanded FMLA leave is entitled to reinstatement to the same or an equivalent position.
For employers with fewer than 25 employees,
an employee returning from expanded FMLA leave is entitled to reinstatement to the position held by the employee when the leave commenced
unless that position does not exist due to economic conditions or other changes in operating conditions caused by the public health emergency
. In such case, the employer must make reasonable efforts to restore the employee to an equivalent position, and if those efforts fail, make reasonable efforts for at least a year to contact the employee if an equivalent position becomes available.
TRACKING PAID LEAVE:
if you are setting up your own earnings codes related to H.R.. 6201 "Families First Coronavirus Response Act," we would recommend you use the following pay code names:
FF-PSL (Families First Paid Sick Leave) or FF-FMLA (Family First FMLA)
You should avoid using COVID or COVID-19 for privacy reasons as these codes do show on employees pay statements.
IRS Response to COVID-19:
Payment Deadline Extended to July 15, 2020
The Treasury Department and the Internal Revenue Service are providing special payment relief to individuals and businesses in response to the COVID-19 Outbreak.
The filing deadline for tax returns remains April 15, 2020. The IRS urges taxpayers who are owed a refund to file as quickly as possible. For those who can't file by the April 15, 2020 deadline, the IRS reminds individual taxpayers that everyone is eligible to request a six-month extension to file their return.
SELECTED STATE UPDATES:
Revises provisions related to enhanced surveillance during a state of emergency. Includes an emerging health threat as an event the Governor may issue an enhanced surveillance advisory in response to.
Relates to the Department of Health Services; appropriates $55 million from the budget stabilization fund to the public health emergencies fund to pay the expenses of public health emergency responses following a state of emergency declaration by the Governor related to COVID-19.
Provides for procedures regarding public school closures related to the coronavirus disease 2019; appropriating funds.
An emergency measure that permits the Arizona Department of Economic Security (DES) to establish an alternative unemployment insurance (UI) benefit program for people impacted by the coronavirus disease (COVID-19). Pending.
Appropriates $500 million from the General Fund for purposes related to the COVID-19 Proclamation of Emergency. Allows the appropriation to be increased in $50 million increments up to a total to not exceed $1 Billion.
Appropriates $100 million for local education agencies to purchase protective equipment and supplies and labor related to cleaning school sites.
Requires certain workforce protections related to family and medical leave due to the coronavirus.
Permits the State Controller to transfer up to $11 million from the Reserve for General Fund Operating Capital to a COVID-19 response refund to address funding needs related to the novel coronavirus.
Requires a postsecondary educational institution in the State that temporarily suspends classes and requires students, staff and faculty to remain of campus due to an infectious disease, including COVID-19 to take certain actions around student reimbursement, faculty compensation and allowing students to remain on campus.
Provides the Governor, on a temporary basis, with additional powers for the duration of the state of emergency declared by the Governor due to the outbreak of COVID-19.
Makes supplemental appropriations and allocations for the expenditures of the general fund; includes one-time funding to respond to COVID-19.
Appropriates $95,000 for the Executive Office of Education to contain, treat and prevent the coronavirus. This bill requires a report to the legislature by June 1, 2020, with recommendations if additional funds and action are needed.
Makes appropriations for the fiscal year 2020 to provide for supplementing certain existing appropriations and for other activities and projects. Includes a reserve of $15,000,000 to support the commonwealth’s monitoring, treatment, containment, public awareness and prevention efforts against COVID-19.
Authorizes waiver of the one week waiting period for unemployment benefits.
Provides any public safety official and 1st responder, who contracts, has symptoms of, or otherwise becomes affected by the Coronavirus (COVID-19), that results in a period of hospitalization, quarantine, or require self-quarantined measures as a result of being infected or coming into contact with someone who is infected with this virus, shall have their medical condition or incapacity to work presumed to be work-related. Public safety official shall not be required to use sick time, vacation time, or personal time to cover said period of incapacitation or inability to perform regular duty work.
Requests that President Donald Trump declare a National Emergency for the Coronavirus Pandemic.
Relates to employer registration for unemployment insurance. Contains amendments that ensure employees receive benefits when quarantined or providing care for a quarantined family member.
COVID-19’s status and updates related to the same are ongoing, we are reviewing guidance distributed by the CDC and local officials as well as other resources and will update frequently.