Changes to FMLA
03.24.2020
By: Landis Barber
On March 18, 2020, the Families First Coronavirus Response Act (the “Act”) was signed into law. Under the Act, Section 102(a)(1) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(a)(1)) was amended.
Before the Act Section 102(a)(1) stated, “Subject to section 2613 of this title, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following . . . .” The Act added the following language:
“(F) During the period beginning on the date the Emergency Family and Medical Leave Expansion Act take effect, and ending on December 31, 2020, because of a qualifying need related to a public health emergency in accordance with section 110.”
Qualifying Need Related to a Public Health Emergency is defined as an employee who is unable to work due to a need for leave to care for a child (any child you have legal responsibility for or adult children with disabilities) under 18 years of age if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable due to a public health emergency.
The Act states that the first 10 days for which an employee takes leave under section 102(a)(1)(F) may consist of unpaid leave, but after 10 days, an employer must provide paid leave. However, if leave is foreseeable, an employee must provide the employer with notice.
Regarding payment, after the first 10 days, it is two-thirds of an employee’s regular rate of pay up to $200 per day for a total of up to 12 weeks, but not to exceed $10,000 total.
Once an employee’s FMLA leave ends, an employee must be restored to their prior position if no action unrelated to employee’s request for leave has eliminated the position. This is true unless, (1) the company has fewer than 25 employees, (2) the position no longer exists due to changed operating conditions to the public health crisis, and (3) the employer makes reasonable efforts to restore employee to an equivalent position for up to one year.
FMLA Expansion and the Paid Sick Leave Act highlighted below applies to employers with fewer than 500 employees based on the date the employee’s leave starts. However, furloughed and laid off employees do not count toward the employee total.
Small business with fewer than 50 employees may be exempted from the requirements when (1) leave payments would result in financial obligations exceeding revenues and cause the business to cease operating, (2) absence of employee(s) requesting leave would entail substantial risk to the financial health or operational capabilities of the business due to the employee’s specialized skill, knowledge, or responsibilities,or(3) there would be an insufficient number of workers able, willing, and qualified to work when needed for the business to operate at a minimal capacity. At this time, the Department of Labor has not released information on how to apply, but companies are advised to maintain detailed records justifying the exemption.
PAID SICK LEAVE ACT
Under Division E-Emergency Paid Sick Leave Act, an employer must provide each employee paid sick time to the extent that the employee is unable to work due to a need for leave because,
(1) employee is subject to a quarantine or isolation order related to COVID-19,
(2) the employee has been advised by a health care provider to self-quarantine,
(3) the employee is experiencing symptoms of COVID-19 and seeking medical diagnosis,
(4) the employee is caring for an individual subject to (1) or (2),
(5) the employee is caring for a son or daughter if the school or place of care has been closed, or child care provider unavailable due to COVID-19 precautions, or
(6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and Secretary of Labor (this reason has yet to be expanded upon).
Note, an employer that is a health care provider or an emergency responder may elect to exclude the employee from the subsection’s application. Also, an employer with fewer than 50 employees may be exempted as highlighted above.
Regarding payment, full-time employees who have need for paid sick leave due to reasons (1)-(3) above, may receive up to 80 hours of sick leave at the employee’s regular rate of pay, capped at $511 per day and $5,110 per employee. Full-time employees who have a need for paid sick leave due to reasons (4)-(6) above, may also receive up to 80 hours of sick leave, but it is at two-thirds the employee’s regular rate of pay, capped at $200 per day and $2,000 per employee. The same rates are applicable to part-time employees but a part-time employee’s sick leave hourly amount is “a number of hours equal to the number of hours that such employee works, on average, over a 2-week period. In both cases, full-time and part-time, an employer may not require an employee to find a replacement to cover the hours during which the employee is using paid sick time.
Also, under Division F-Health Provisions, a group health plan and a health insurance issuer offering group or individual health insurance must provide coverage for in vitro diagnostic products and the administering of the products for the detection of the virus that causes COVID-19 that are approved, cleared, or authorized under section 510(k), 513, 515, or 564 of the Federal Food, Drug, and Cosmetic Act.
Many clients are asking how the leave will be funded. Companies should maintain detailed documentation of leave provided to each employee. Documentation should include the employee’s name, date of requested leave, qualifying reason for leave, and a statement that the employee is unable to work or telework because of a qualifying reason (listed above).
For the qualifying reason, companies should include specific information as to why the reason applies to the employee. If an employee has been advised to self-quarantine, include the name of the health care provider. If an employee is experiencing symptoms, document the symptoms that the employee is experiencing. Lastly, if leave is given because of a school or daycare closing, give the name of the child, name of the daycare provider, and a statement that no other suitable person is available to care for the child.
All of this information and recordkeeping will allow employers to be able to qualify for payroll tax credits. Under the Act, employers are eligible for up to 100% payroll tax credits. Additionally, to ease the burden on the forefront, employers should look into the Payroll Protection Program that provides federally backed loans to cover payroll, paid sick leave, insurance premiums, rent, utilities, and other payments. The application deadline for the Payroll Protection Program is June 30, 2020. However, due to what is anticipated to be a heavy amount of applications, employers should submit an application as soon as possible.
One more requirement under the Act, employers are required to post this Notice of Rights. It can be posted through email, mail, or on the employer's website if employees are remote or teleworking.
CONCLUSION
Although this Act expires on December 31, 2020, it will have significant implications for employers and employees alike. Everyone should be aware of the Act, the amendments, and how it can benefit them.
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