Background on Family Medical Leave Act (1993)
Under the previous version of FMLA, the requirements of FMLA applied to “covered” employers. Covered employers were defined as private sector employers with 50 or more employees in 20 or more workweeks per calendar year. Even if an employer was a “covered” employer, the employee would have to be an “eligible” employee. An “eligible” employee was one who worked for a covered employer for the previous 12 months, worked at least 1,250 hours during the preceding 12 months, and whose work location included at least 50 of the employer’s employees within 75 miles.
Families First Coronavirus Response Act
On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) became public law. The law took effect on April 2, 2020. It is effective through December 31, 2020. The Act expanded FMLA to provide more coverage to employees and created emergency paid sick leave as a direct response to the Coronavirus (COVID-19) pandemic.
FMLA Expansion Act
FMLA Expansion Act falls under Division C of the FFCRA. FMLA expansion applies to all employers with 500 employees or fewer. The expansion is effective through December 31, 2020. Employers with less than 50 employees may file for an exemption with the Department of Labor due to constraints on the viability of the business if it was made to comply.
FMLA is expanded and amended to include Coronavirus-related illnesses. Employers must provide up to 12 weeks paid leave for employees who cannot work because they have contracted COVID-19, are suspected to have contracted COVID-19, or their child’s school or childcare provider is closed due to a public health emergency. Employees must wait two weeks before they can use FMLA for Coronavirus-related illnesses. The FMLA expansion narrows the definition of who the employee can care for in order to receive benefits.
The employee’s ability to work from home, or telework, may affect the employee’s right to collect FMLA benefits. The employee’s inability to work must be related to Coronavirus or COVID-19. Even an employee’s positive test or self-quarantine may not automatically trigger FMLA benefits.
Employers are entitled to tax credits for amounts paid out for FMLA leave. The employer is entitled to a credit against payroll taxes for 100% of the employer-paid qualified sick leave each quarter. For the employer to receive this credit, the compensation to the employee(s) must be directly related to the FMLA Expansion Act criteria.
Under FMLA, employers are not required to pay employees for the first 10 days of leave. However, leave during these first 10 days may be covered by emergency paid sick leave.
Emergency Paid Sick Leave
Emergency paid sick leave falls under Division E of the FFCRA. Emergency sick leave applies to all employers with 500 employees or fewer. The expansion is effective through December 31, 2020. Employers with less than 50 employees may file for an exemption with the Department of Labor due to constraints on the viability of the business if it was made to comply.
Emergency sick leave applies to employees who are unable to work due to Coronavirus. Full-time employees are entitled to 80 hours of emergency sick leave if the employee: (a) is subject to a governmental quarantine order; (b) has been advised by a health care provider to self-quarantine; (c) is experiencing substantially similar circumstances related to Coronavirus as specified by the Department of Health and Human Services; or (d) is caring for the employee’s child because the child’s school or childcare provider is closed.
The employee’s ability to work from home, or telework, may affect the employee’s right to claim emergency sick leave benefits. The employee’s inability to work must be related to Coronavirus or COVID-19. Even an employee’s positive test or self-quarantine may not automatically trigger emergency sick leave.
Employers are entitled to tax credits for amounts paid out for emergency sick leave. The employer is entitled to a credit against payroll taxes for 100% of the employer-paid qualified sick leave each quarter. For the employer to receive this credit, the compensation to the employee(s) must be directly related to the emergency paid sick leave criteria.
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