Families First Emergency Family and Medical Leave Expansion Act

Help for Employers and Employees

Emergency Family and Medical Leave Act
Requires companies with fewer than 500 employees to provide paid time off. Employers with fewer than 50 employees may be exempt if it would “jeopardize the viability of the business”

Employers with fewer than 500 employees now must allow employees who have been employed for at least 30 calendar days and who cannot work or telework to take up to 12 weeks of leave pursuant to a “qualifying need” because the employee must care for the employee’s child under the age of 18 when the child’s school is closed or childcare provider is unavailable due to a public health emergency. EFMLEA affects all small and medium size businesses since it applies to those that have fewer than 500 employees. This section applies to employers who would not normally be subject to the FMLA however, DOL has the authority to issue regulations to exempt small businesses (less than 50 employees) when the imposition of EFMLA would jeopardize the viability of the business as a going concern, and certain health care providers and emergency responders.

If an employee elects to take leave under EFMLEA, the first 10 days of leave are unpaid unless the employee elects to substitute accrued paid leave for the unpaid leave. However, the employer cannot force the employee to substitute paid leave. After the tenth day of leave, the employer must provide paid leave for each day of leave for the remainder of the 12 weeks.

The amount paid must be at least two-thirds of an employee’s regular rate of pay times the number of hours the employee would normally work with is a limit on required payments for any single employee of $200 per day and $10,000 in the aggregate.

An employee who returns from this leave is entitled to be restored to his or her former position. However, if the employer has fewer than 25 employees, the employee is not required to be restored to their previous position if the following facts exist:

• The employee’s position does not exist due to economic conditions caused by the public health emergency during the period of leave;

• The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced; and

• If such reasonable efforts fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available for one (1) year from the earlier of (a) the date on which the qualifying need related to a public health emergency concludes or (b) the date that is 12 weeks after the date on which the employee’s leave commenced.

Emergency Paid Sick Leave Act
Up to two weeks of paid leave for small business for both full and part-time employees Capped at $511 per day and $5,100 in the aggregate

To ease burden on employers, and retain employment of workers, employers receive dollar for dollar tax credits for providing paid sick leave and expanded family and medical leave related to COVID-19.

US DOL Q&A document here: Questions and Answers document

And a summary of updated guidance here:

• The leaves are not available to employees with reduced hours, furloughed employees, or employees whose workplaces are closed. See questions 23-28.
• These leaves are not available to employees whose workplaces are closed due to a federal, state, or local shelter-in-place or stay-at-home orders, or due to business slowdowns. See question 23.
• These leaves (and payroll tax credit) are not retroactive. Employees are not entitled to pay under these leaves if they were absent or out of work (for any reasons) prior to April 1. See question 13.
• Both emergency paid sick leave (EPSL) and emergency Family and Medical Leave (EFMLA) can be taken on an intermittent basis in certain situations. See Questions 20-22 for explanations about when intermittent leave is allowed.
• Employees may not be required to use other forms of paid leave prior to or concurrently with EPSL or EFMLA. See questions 32 and 33.
• Employers should keep documentation to show that employees who received leave were actually in need of leave. The documentation requirements will be outlined in soon-to-be-released IRS guidance. See Questions 15 and 16.

The Emergency Paid Sick Leave Act (“EPSLA”) also applies to all small and medium sized employers with 500 or fewer employees. EPSLA requires employers to provide paid “sick” leave to employees who are unable to work or telework because of one of the following:

1. The employee is subject to Federal, State, or local quarantine;

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 a person who is subject to quarantine or been advised to self-quarantine by a health care provider;

5. The employee is caring for their child because the child’s school is closed or childcare provider is unavailable due to COVID-19 precautions.

Employees who are health care providers or an emergency responders can be excluded from sick leave under EPSLA.

Paid sick leave is not required to exceed 80 hours for full time employees. Part-time or hourly employees are paid sick leave based on the two week average of the number of hours that the employee normally works. An employee’s paid sick leave ends either (i) when available sick leave is it is exhausted or (ii), if the need for leave no longer exists, with the employee’s next scheduled work shift.

There is also a dollar limit to the amount of required paid sick leave. Paid sick leave under the first three reasons paid sick leave is not required to exceed more than $511 per day and $5,110 in the aggregate for any single employee. For the other two reasons, the paid sick leave is not required to not exceed $200 per day or $2000 in the aggregate for any single employee.

Full-time employees are entitled to 80 hours of paid sick time, and part-time or hourly employees are entitled to the specified amount of paid sick leave equal to the number of hours that the employee works, on average of a 2-week period. The paid sick time ends beginning with the employee’s next scheduled work shift after the need to use this leave has ended.

The DOL is to provide additional guidance on how to calculate the amount of required paid sick leave.

Employers cannot require employees to use other paid leave provided by the employer to the employee before the employee uses paid sick leave under EPSLA.