Guest Blogger – Patty Wise

Patty, Wise Spengler Nathensen

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Families First Coronavirus Response Act

Passed March 13, 2020 by House of Representatives

Approved March 18, 2020 by Senate (90-8)

Signed into Law by President March 18, 2020

Free Coronavirus Testing

Enhanced Unemployment Insurance (check state funds as well)

Enhanced Protections for Health Care

Workers and Employees Responsible for Cleaning

Additional Medicaid FundsAdditional

Funding for Nutritional Programs

AMENDMENTS TO THE FAMILY AND MEDICAL LEAVE ACT

  -Emergency Family and Medical Leave Expansion Act

    -Effective April 2, 2020

Covered Employer: An employer with fewer than 500 employees.  The Department of Labor can issue regulations to exempt employers with fewer than 50 employees for reasons of financial hardship that would jeopardize business viability. The requirement of 50 employees within a 75-mile radius is not applicable to these emergency amendments. 

Covered Employee: Any employee that has been on the employer’s payroll for 30 calendar days.  The Department of Labor can issue regulations to exclude some health care providers from eligibility. Same definition of employer/employee re: part-time, seasonal, temporary etc. 

Amount of Leave: Up to 12 weeks.

Reasons for Leave: A covered employee can take leave 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 coronavirus. No documentation specified, document employee’s statement regarding need for such leave. 

Compensation During Leave:  The first 10 days of leave may be unpaid, but an employee can choose to substitute accrued vacation leave, personal leave, or other medical or sick leave during the leave.  The employer cannot force an employee to use their accrued paid leave.  If employee also qualifies for the employee’s own Emergency Paid Sick Leave (below), the employee may use the Paid Sick Leave concurrently with the first 10 days of the EFMLEA that would otherwise be unpaid. 

After 10 days of unpaid leave, employees must be paid at no less than two-thirds the employee’s regular rate of pay for the number of hours the employee would have been normally scheduled. If this amount cannot be ascertained, then an average from hours worked over the prior six months should be used. 

Maximum compensation: Daily maximum of $200 and total of $10,000 for duration of the leave.  The remainder of the 12-week leave is then unpaid. 

Restoration Rights: Employee must be returned to the same or similar position after leave. Employers with fewer than 25 employees may be exempt if a position needs to be eliminated due to economic downturn from COVID19, subject to some conditions.  The employer must make reasonable efforts to provide an equivalent position in terms of pay, benefits and terms and conditions of employment, for a one-year period.  This requires employers to contact an employee if an equivalent position becomes available over the one-year period. 

Tax Credits for Employer: Employers get a tax credit for 100% of qualified family leave wages required to be paid, up to $200/day, against the employer’s portion of Social Security taxes. If that total credit amount exceeds the employer’s total Social Security tax liability, the difference is paid to the employer as a refund.

EMERGENCY PAID SICK LEAVE ACT

  -Effective April 2, 2020

Covered Employer: An employer with fewer than 500 employees.  Also, potential exemption for employers with fewer than 50 employees if they show that paid leave would jeopardize business viability. 

Covered Employee: Any employee, full or part-time.  Immediately eligible upon effective date of the Act. Self-employed workers and gig economy workers will be eligible for tax credits.

Amount of Leave: Up to 80 Hours for f-t employees, up to two weeks of leave for average hours worked by p-t employees in the two weeks preceding leave. 

Reasons for Leave: A covered employee can take leave to:

  • Self-isolate because the employee is diagnosed with COVID-19
  • Obtain a medical diagnosis or care if the employee is experiencing the symptoms of COVID-19
  • Comply with a public official (federal, state or local) or health care provider order or recommendation to self-quarantine or isolate
  • Care for the employee’s family member who is self-isolating because the family member has been diagnosed with or is experiencing symptoms of COVID-19 and/or needs to obtain medical diagnosis or care and/or has been advised by health care provider to self-quarantine
  • Care for the child of such employee if the school or child care has been closed due to COVID-19

These reasons will include substantially similar conditions.  Again, no specific documentation requirements, obtain whatever documentation is available from employee.  Require reasonable notice procedures. 

Compensation During Leave: Full-time employees are paid at their regular rate of pay.  However, when the employee is absent to care for a family member, leave is paid at two-thirds the employee’s regular rate.  Part-time employees are paid the number of hours that the employee works, on average, over a 2-week period. Cap of $511 per day and $5,110 total for self-care; and cap of $200 per day and $2000 total when the employee is caring for someone else. 

Existing Paid Leave Policy: Any paid leave provided before the law is enacted cannot be credited against the employee’s paid leave entitlement under the Act.  Employees may take leave under the Act first, or may use leave that they are already entitled to under the employer’s policies.  Employers may not change leave policies to provide less leave than previously promised or accrued.  Emergency Leave Act hours cannot be carried over after December 31, 2020.

Tax Credits for Employer: Employers get a tax credit for 100% of leave wages required to be paid, up to $511/day, against the employer’s portion of Social Security taxes for employee self-care, and up to $200 per day for care for employee family members. If that total credit amount exceeds the employer’s total Social Security tax liability, the difference will be refundable to the employer as a refund.

Posters

Posters will be available from the DOL.  For now, let employees know. 

Employer’s Time Off and Attendance Policies

All employers should review current policies, which were developed prior to the emergency.  In light of these unique circumstances, some revision or temporary adjustment may be needed.  Be flexible, and don’t require medical or RTW certifications in every situation.