Emergency FMLA and Sick Leave

The U.S. House just passed a revised version of the Families First Coronavirus Response Act with approval from the White House.  

  • “Division C – Emergency Family and Medical Leave Expansion Act”
  • “Division E – Emergency Paid Sick Leave Act”
  • “Division G – Tax Credits for Paid Sick and Paid Family Medical Leave”

 The Senate has yet to act on the bill, but action may come quickly.

Emergency FMLA 

Business coverage: Private-sector businesses with 500 or more employees are not covered, because emergency FMLA (and paid sick leave) covers only government employers and companies with fewer than 500 employees. Exemptions may be available to companies with 50 or fewer workers who are eligible and who apply.

Employee eligibility: Employees that have been working for at least 30 calendar days.

Leave entitlement: 12 weeks.

Reasons for taking emergency FMLA include:

  • To adhere to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus;
  • To care for an at-risk family member who must quarantine due to exposure to or symptoms of coronavirus; and
  • To care for a child of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a coronavirus.

This is usually paid leave:

  • The first 14 days of emergency FMLA leave are unpaid, except when the employee elects to run accrued PTO concurrently. The employer may not require this.
  • After two weeks, employees get paid at least two-thirds of the employee’s usual pay.

Notice requirement: None.

Effective date: 15 days after it becomes law.

Sunset: December 31, 2020.

Sick Leave

Employee eligibility: All current employees, regardless of days of service.

Leave entitlement: 2 weeks of paid leave (80 hours for full-time, pro-rata for part-timers)

Reasons for paid sick leave:

  1. To quarantine/self-isolate because of diagnosed coronavirus
  2. To seek a diagnosis or preventative care for coronavirus symptoms
  3. To comply with a recommendation or order from public official or health care provider that an employee shouldn’t be at work because of coronavirus factors
  4. To care for a family member for similar coronavirus-related reasons as outlined above
  5. To care for a child whose school has closed, or childcare provider is unavailable, due to coronavirus

Amount of pay: Companies must pay an employee taking leave for any of the first three reasons listed above at his/her regular rate of pay. When an employee takes paid sick leave for a family member or child, s/he gets paid at two-thirds the employee’s regular rate.

If you already have a PTO policy: The employee gets paid sick time under the new law in addition to any PTO in the bank, the leaves run consecutively. A company cannot change its own PTO rules after this goes into law. Further, an employer may not require the employee to identify a replacement employee to cover his or her shift while taking sick leave.

Effective date: Same as emergency FMLA.

Sunset: December 31, 2020.

Paid sick leave carryover into 2021: None.

Tax Credits

The bill provides a refundable tax credit equal to 100 percent of qualified paid sick and family leave wages an employer pays for each calendar quarter.

As further developments occur, we will be updating you accordingly.

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