Emergency Family and Medical Leave Expansion Act

Effective Date: April 2, 2020

Covered Employer:  Less than 500 employees

Eligible Employee:  Employees employed for at least 30 calendar days by the employer

Additional Reasons for Leave:  Employees can now also take leave when the employee is unable to work, including telework, due to the need to care for their child, who is under 18 years old, if the child’s school or place of care closed, or the child’s care provider is unavailable, due to a public health emergency related to COVID-19.

Paid/Unpaid Leave:

• First 10 days of leave are unpaid.
• Employee can elect to substitute accrued paid-time-off for unpaid leave.
• Paid leave at a rate of at least 2/3 the employee’s regular rate of pay and normal work schedule.
• Paid Leave capped at $200/day ($10,000 in aggregate).

Notice:  If need to leave is foreseeable, employee must give notice of leave as is practicable

Position Restoration: Job restoration is not required if an employer has less than 25 employees and the employee’s position no longer exists due to economic conditions or other changes in the employer’s operations that affect employment and are caused by a public health emergency, and the employee took leave for the addition reason now covered.  However, the employer must make reasonable efforts to restore the employee to an equivalent position, and if the employer cannot, the employer must make reasonable efforts for one year to contact the employee if an equivalent position becomes available.

Emergency Paid Sick Leave Act

Effective Date: April 2, 2020

Covered Employers:

• Private employers with less than 500 employees.
• Public agencies (federal, state, and local governments, schools, etc.).
• Any other entity that is not a private entity or individual and employees 1 or more employees.
• Any person acting, directly or indirectly, in the interest of the employer.
• Any successor in interest of the employer.

Eligible Employee:  All employees are eligible right away—no minimum length of employment for eligibility.  However, employers can exclude employees who are health care providers or emergency responders.

Reasons for Use of Paid Sick Leave: Employee cannot work or telework because:

1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a health care provider to self-quarantine due to COVID-19;
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. The employee is caring for an individual who:
   • is subject to a federal, state, or local quarantine or isolation order related to COVID-19; or
   • has been advised by a health care provider to self-quarantine due to COVID-19
5. The employee is caring for their child whose school or place of child care is closed or the child care provider is unavailable due to COVID-19 precautions, or
6. The employee is experiencing substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretaries of Treasury and Labor.

Amount of Paid Sick Leave:

• Full-time employees: 80 hours.
• Part-time employees: equivalent to the average number of hours the part-time employee works over two weeks.
• No carry-over from year-to-year.

Amount of Pay:

• Based on employee’s regular rate of pay and normal work schedule.
• Not to exceed $511/day ($5,110 in aggregate) if for the first three reasons for leave.
• 2/3 of pay if leave is for any of the last three reasons, and not to exceed $200/day.

Notice: After the employee’s first day of using the paid sick leave, the employer can require the employee to follow reasonable notice procedures in order to continue using the paid sick leave.

Employers CANNOT:

• Require an employee to find replacement to cover shift/hours.
• Require an employee to use other paid leave provided by the employer first. This Paid Sick Leave is in addition to other paid-time-off provided by the employer.
• Retaliate against employees

Tax Credits for Paid Sick and Paid Family and Medical Leave

Employers may receive a credit for the employer portion of the FICA taxes paid each quarter, in an amount equal to 100% of the wages paid by the employer pursuant to the Emergency Paid Sick Leave Act, the Emergency Family and Medical Leave Expansion Act, and the amount of the employer’s qualified health plan expenses allocable to wages for which the credit is allowed.  The amount of such wages taken into account shall not exceed $200/day for each individual for Emergency Paid Sick Leave and for the Emergency Family and Medical Leave Expansion Act $200/day or in the aggregate $10,000/quarter for each individual. Such credits are limited to the amount of tax actually paid by the employer.  If the amount of the credits exceed such limit, the employer may be entitled to a refund for any overpayment. 

 For persons who pay self-employment taxes, such persons are eligible to receive a credit in an amount equal to the “qualified sick leave equivalent” and “qualified family leave equivalent.” The qualified sick leave equivalent is equal to the product of (i) the number of days during the taxable year (but not more than the number of days in excess of 10 days taken) that the individual is unable to perform his or her job (due only to the reasons that an employee may be entitled to receive sick leave as described in Emergency Paid Sick Leave Act), multiplied by (ii) the lesser of $200 or 67 percent (100 percent in the case of any day of paid sick time described in first three (3) reasons set forth in the Emergency Paid Sick Leave Act) of the average daily self-employment income of the individual for the taxable year.  The qualified sick leave equivalent is equal to the product of (i) the number of days (not to exceed 50) during the taxable year that the individual is unable to perform services in any trade or business for a reason with respect to which such individual would be entitled to receive paid leave as described in Emergency Family and Medical Leave Expansion Act, multiplied by (ii) the lesser of 67 percent of the average daily self-employment income of the individual for the taxable year, or $200.  Note that certain exclusions apply for both tax credits and that the credit does not apply to governmental employers or any agencies or instrumentalities thereof.

The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.