Emergency Family Medical Leave Expansion Act – Key Takeaways and Requirements

President Trump signed the Families First Coronavirus Response Act on March 18, 2020, sweeping legislation addressing those impacted by COVID-19.

The Act includes the Emergency Family Medical Leave Expansion Act (Emergency FMLA), which requires employers with less than 500 employees to provide Emergency FMLA in certain circumstances to employees who have worked for the employer for at least 30 days. Below are key takeaways and requirements of the Emergency Family Medical Leave Expansion Act:

Covered Employers Under Emergency FMLA: On a temporary basis, employers with fewer than 500 employees must provide Emergency FMLA in certain circumstances to employees who has worked for the employer for at least 30 days prior to the leave.

Qualifying Reasons for Leave: The Act provides 12 weeks of job-protected leave to employees who are unable to work or telework due to the need to care for the employee’s child (under the age of 18) if that child’s school or place of care is closed or the childcare provider is unable to provide care due to the COVID-19 public health emergency. This is now the only qualifying reason for Emergency FMLA under the Act.

Unpaid and Paid Leave: The first 10 days of Emergency FMLA can be unpaid or an employee can choose to use any accrued PTO for that 10-day period. After those first 10 days, the employer must generally provide paid leave at a rate of 2/3 of the employee’s regular rate of pay for his or her normal schedule. The amount is capped at $200 per day and $10,000 over the entire Emergency FMLA.

If an employee does not work a normal schedule, employers should calculate the employees hours by using: (i) the average number of hours that employee was scheduled to work each day over the 6 months prior to the employee requesting Emergency FMLA; or (ii) if the employee has worked for less than 6 months, then the employee’s reasonable expectation at hiring of the average number of hours per day the employee would be scheduled to work.

Returning to Work: Traditional FMLA restoration requirements apply to employers with 25 or more employees. Employers with less than 25 employees are generally excluded from the traditional FMLA restoration requirement if the employee’s job no longer exists after Emergency FMLA due to the economic changes caused by COVID-19. However, the employer must make reasonable efforts to restore the employee to an equivalent position and must continue to make such efforts for up to a year after the employee’s Emergency FMLA leave.

Exclusions: The Secretary of Labor may exempt the following from taking such leave:

  1. Healthcare providers and emergency responders; and
  2. Small businesses with fewer than 50 employees if the required leave jeopardizes the viability of the business.
    Additionally, employers of healthcare providers or emergency responders may elect to exclude healthcare employees or emergency responders from Emergency FMLA.

Effective Date: Emergency FMLA goes into effect on April 1, 2020 and will remain in effect until December 31, 2020.

Tax Credit for Emergency FMLA: Employers are entitled to a tax credit in the amount of 100% of the qualified Emergency FMLA wages paid by the employer for each calendar quarter. The qualified Emergency FMLA wages for an employee cannot exceed $200 per day or $10,000 total for all the calendar quarters.

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