The Families First Coronavirus Response Act creates paid sick leave and paid family medical leave for private sector employers of less than 500 employees for qualifying events. We are updating our previous guidance about these laws to bring you the most current information as the federal agencies involved in implementation issue their own guidance. Please be aware that in some instances the federal agencies are taking positions that are not consistent with the statute and/or with each other.
The United States Department of Labor has issued a poster that every covered employer is required to post/distribute so that employees are aware of the leave that may be available to them over the course of this year in response to the pandemic. Here is a link to the notice:
We recommend that this notice be posted where other employment notices are posted and that it be distributed electronically.
According to the United States Department of Labor, these laws now take effect on April 1. Any prior guidance about April 2 should be disregarded. If an employer extended leave under the Emergency Paid Sick Leave Act during the month of March, that time off does not count towards an employee’s entitlement on or after April 1. Furthermore, despite guidance from both the US Treasury and the IRS announcing the immediate availability of tax credits on March 20, 2020, the Department of Labor’s guidance is contradictory. We are continuing to pursue an answer to this apparent interdepartmental conflict.
The Department of Labor caps the Emergency Paid Sick Leave Act at 80 hours over two weeks and the expanded family medical leave at 12 weeks, 10 of which are paid. The first two weeks of the expanded family medical leave may be unpaid unless the employee still has available paid time under the Emergency Paid Sick Leave or unused earned time under the employer’s regular earned time policy. Employers would be well advised to dual designate leave that qualifies for both Emergency Paid Sick Leave and for Family and Medical Leave Act leave.
Although Paid Sick Leave is available to an employee starting on his/her first day of work, the paid expanded FMLA leave is not available until thirty days of employment. Some employers hire through a temporary agency and then onboard the temps to their payrolls. In counting the thirty days, time spent as a temp is included.
Exemptions may be available for businesses of less than 50 employees, but information about criteria and application procedures is not expected to be released until sometime in April.
The Department of Labor states that the Emergency Family and Medical Leave Expansion Act requires an employer “to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.” However, the amounts of these payments are subject to daily and aggregate caps as previously advised and they do not need to include a premium for overtime under either law.
Finally, the Internal Revenue Service has indicated that the tax credit will also include the employer’s cost of maintaining health insurance while the employee is on leave.