This is a second portion of new emergency legislation. This gives you information regarding the Emergency Family and Medical Leave Expansion Act as of 3/25/2020. This adds new qualifying circumstances for “FMLA” and details on how to be reimbursed for it. As you know, legislation is being added and changed quickly so please keep in mind that this could change.
Emergency Family and Medical Leave Expansion Act (EFMLEA)
• Effective 4/2/2020, EFMLEA requires employers with fewer than 500 employees to
provide employees with up to 12 weeks of leave for a “qualifying need related to a public health emergency” and to return the employee to work at the end of the leave
• For employers with fewer than 25 employees, there is an exception to the requirement to return an employee to work at the end of the leave under the following conditions:
– The employee’s position no longer exists because of economic or operating conditions caused by the public health emergency; and
– The employer makes reasonable efforts to restore the employee to an equivalent position with equivalent pay, benefits, and terms and conditions of employment for a one-year period
– “Reasonable efforts” include the duty to contact the employee when an equivalent position becomes available over this one-year period
Employer is required to notify employees of rights under EFMLEA
• EFMLEA requires employers to notify employees of the new family leave option.
• In this connection, the Department of Labor will soon publish a poster that employers must post in the workplace.
• Employers should also notify employees of their right to take leave under EFMLEA.
Employee eligibility is determined and notice of eligibility status must be provided, the first time the employee takes leave for an FMLA-qualifying reason in the employer’s designated 12-month leave year. The eligibility notice may be either oral or in writing and must:
• Be provided within five business days of the initial request for leave or when the employer acquires knowledge that an employee leave may be for an FMLA-qualifying reason;
• Inform the employee of his or her eligibility status; and
• If the employee is determined to be not eligible for FMLA leave, state at least one reason why.
Qualifying leave under EFMLEA
• COVID-19 is a public health emergency
• EFMLEA provides that an employee must have a minimum period of employment of 30 days with the employer in order to be eligible for benefits under EFMLEA
• EFMLEA has no required number of hours worked during that 30-day period in order for an employee to be eligible for EFMLEA benefits
• A qualifying need means that an employee is unable to work or telework because the employee needs leave to care for a son or daughter under the age of 18 whose school or place of care has closed or whose childcare provider is unavailable, because of an emergency with respect to COVID-19 declared by a federal, state, or local authority
Leave amount under EFMLEA
• Under the EFMLEA, the first 10 days of the employee’s leave may consist of unpaid leave
• An employee may choose to substitute any accrued paid leave such as vacation, personal, medical, or sick leave for such unpaid leave
• If an employee qualifies for both EFMLEA and Emergency Paid Sick Leave under the EPSLA, the employee may use the Emergency Paid Sick Leave at the same time as the first 10 days of the EFMLEA leave that would normally be unpaid
• Following that 10-day period, an employer must provide paid leave to the employee for each additional day of leave
• The rate of pay for such paid leave is calculated based on a rate of not less than two-thirds of the employee’s regular rate of pay and the number of hours the employee would otherwise normally be scheduled to work but is capped for each employee at two-thirds of regular pay rate up to $200 per day or $10,000 in the aggregate
Employer credits for EFMLEA payments
• Employers paying family leave wages under the EFMLEA may claim a 100% credit against the employer’s share of payroll tax for each employee, limited to two-thirds of regular pay rate up to $200 per day up to a total of $10,000 per employee plus a pro rata share of the employer’s qualified health plan expenses
Taking both the EPSLA and EFMLEA credits for employers
• The employer credits for payments employers make under EPSLA and EFMLEA are
refundable to the extent that they exceed the amount the employer owes in payroll tax
• There are two credits for employers:
– Payroll credit for required paid sick leave (EPSLA) – 100% of qualified paid sick leave wages paid by the employer for each calendar quarter plus a pro rata share of the employer’s qualified health plan expenses paid for each calendar quarter
– Payroll credit for required paid family leave (EFMLEA) – 100% of qualified family leave wages paid by an employer for each calendar quarter plus a pro rata share of the employer’s qualified health plan expenses paid for each calendar quarter
• Employers do not receive these credits if they are also receiving the payroll tax credit for paid family and medical leave under §45S (normal family and medical leave for birth or adoption of a child, care for a spouse, child or parent who has a serious health condition, a serious health condition that makes the employee unable to perform the functions of his or her position, etc.).
• The credits apply to wages paid from 4/2/2020 to 12/31/2020
Exception from EFMLEA for small businesses on paid family and medical leave
• Employers with fewer than 50 workers can apply for an exemption from EFMLEA through the Labor Department to avoid having to provide paid family and medical leave if it would jeopardize the viability of the business
• On its website the Department of Labor indicates that: the exemption will be available on the basis of simple and clear criteria that make it available in circumstances involving jeopardy to the viability of an employer’s business as a going concern. The Department of Labor will provide emergency guidance and rulemaking to clearly articulate this standard