Federal FMLA and Paid Leave
Changes in Response to COVID-19
March 20, 2020
On March 18, 2020, the “Families First Coronavirus Response Act,” or “FFCRA,” was signed into law. Most relevantly for employers, the FFCRA mandates two weeks paid sick leave (“Paid Sick Leave”) and paid Family and Medical Leave Act (“Paid FMLA”) benefits for eligible employees.
Which employers have to comply with the FFCRA?
Private employers with fewer than 500 employees must comply with both the Paid Sick Leave and Paid FMLA provisions of the FFCRA. However, employers that are health care providers or emergency responders will likely be excluded from compliance with the FFCRA, as will small businesses with fewer than 50 employees if compliance would jeopardize the viability of the business as a going concern. The FFCRA gives the U.S. Secretary of Labor the authority to impose rules more clearly defining such exclusions.
Which employees are eligible for Paid FMLA?
Employees are eligible for a new type of FMLA if they have been employed for 30 days and have to stay home to care for their minor child because the child’s school or day care has been closed (or no day care is available) due to a public health emergency (such as Ohio Governor DeWine’s declaration of a state of emergency due to the coronavirus).
What new FMLA benefits are eligible employees entitled to?
Employers must provide up to 12 weeks of FMLA benefits to eligible employees. The first 2 weeks can be unpaid (although employees will likely request Paid Sick Leave for the first two weeks), but the remaining 10 weeks must be paid in an amount equal to 2/3 of the employee’s usual pay, although total benefits are capped at $200 per day and $10,000 total. Employees merely need to provide notice to their employers “as is practicable” in order to receive Paid FMLA.
Which employees are eligible for Paid Sick Leave?
An employee is eligible for Paid Sick Leave if the employee is unable to work (or telework) because the employee:
Was ordered to self-quarantine by a governmental authority or healthcare provider due to the coronavirus, or is caring for an individual who has been quarantined;
Is caring for his or her child because the child’s school or day care has been closed (or no day care is available) due to coronavirus precautions; or
Is experiencing any other substantially similar condition specified by the U.S. Secretary of Health and human Services.
What kind of Paid Sick Leave benefits are eligible employees entitled to?
Employers must provide 2 weeks (80 hours) of paid sick leave to full-time eligible employees, and they must provide part-time employees pay for the number of hours they would normally work in a two-week period. Generally, the pay must be at the employee’s regular hourly rate. However, weekly pay is capped at $511 per day ($5,110 in the aggregate) for employees who were ordered to quarantine under eligibility criterion (1), above, and $200 per day ($2,000 in the aggregate) for employees quarantined under eligibility criteria (2) or (3), above.
Will businesses be reimbursed for the cost of providing paid sick leave and paid FMLA?
Yes. Businesses must pay the new Paid Sick Leave and Paid FMLA benefits themselves, but they will receive a tax credit for doing so. The credit will be equal to 100 percent of the qualified Paid FMLA and Paid Sick Leave wages paid by the employer, and it will be applied as a credit against the business’s quarterly payroll taxes. Any excess credit will then be refunded to the employer.
If you have any questions regarding coronavirus-related changes to existing employment and business laws, please do not hesitate to contact us. While we have instituted health and safety measures at Broehl Law Office in accordance with federal and state guidance, including cancellation of in-person appointments, we are still actively working for our clients, and we remain available to address your needs and concerns.