EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT SUMMARY

KEY TAKEAWAYS

– Emergency Paid Leave only for child care disruption;

– Emergency Sick Leave – must have one or more of 6 reasons (listed below);

– Emergency Paid Leave – 2 weeks unpaid and 10 weeks paid;

– Emergency Sick Leave – 2 weeks paid;

– Who is subject to this Act – private companies with fewer than 500 employees;

– Companies with less than 50 employees might be exempt if complying with EFMLA requirements will jeopardize the business as a going concern.

EMERGENCY PAID LEAVE

Emergency Paid Leave Requirement
The Act provides for multiple conditions supporting up to 2 weeks of unpaid and 10 weeks of paid emergency FMLA leave, including an employee’s quarantine. There is only one qualifying condition: if an employee is unable to work (or telework) in order to care for a child who is under years old if the child’s ordinary place of care (including a school) is unavailable.

Employee Eligibility
An employee who has been employed for at least 30 calendar days. The Act allows excluding certain health care providers and emergency responders from the definition of an eligible employee.

Employer Eligibility
Private employers with fewer than 500 employees, and most public employers. There is language allowing regulations to exclude businesses with less than 50 employees where the requirements would jeopardize that business as a going concern.

Paid Leave Requirement
Leave lasting longer than 10 days must be paid at two-thirds an employee’s regular rate of pay. In more detail:

-The first 10 days of leave may be unpaid. During this unpaid 10 day period, an employee may elect, but cannot be required, to substitute any accrued vacation leave, personal leave, or medical or sick leave for the unpaid leave.

-After 10 days of leave have been taken, the employer must provide paid leave. Paid leave must be an amount that is not less than two-thirds an employee’s regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work; provided, however, that such paid leave is capped at $200/day. Paid leave must continue until the qualifying condition no longer exists, or after twelve weeks of leave have been taken. Finally, there is a $10,000 cap on the aggregate amount of paid leave paid to an employee.

EMERGENCY SICK LEAVE

Emergency Sick Leave Requirement
The Act requires emergency sick leave for employees who cannot work for any of the following reasons:

A. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

B. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

C. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;

D. The employee is caring for an individual who is either (1) subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

E. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions;

F. 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 the Secretary of Labor.

Employee Eligibility
The full allotment of paid sick time provided for by the Act must be available for immediate use by an employee, regardless of how long the employee has been employed by the employer.

Employer Eligibility
Private employers with fewer than 500 employees, and most public employers. There is language allowing regulations to exclude businesses with less than 50 employees where the requirements would jeopardize that business as a going concern.

Allotment of Sick Leave
For full-time employees, 80 hours. For part-time hours, emergency sick leave is the number of hours an employee works, on average, over a 2-week period.

No Carryover – Emergency paid sick time provided by the Act does not carry over from one year to the next.

No Payout at Termination – Paid sick time not used at the time of an employee’s termination, resignation, or retirement does not need to be paid out to the employee.

Pay Rate

Paid sick leave must be paid as follows
-At the employee’s regular rate, subject to a maximum of $511 per day and $5,110 in the aggregate for qualifying conditions (A), (B), or (C) described above.

-At two-thirds the employee’s regular rate, subject to a maximum of $200 per day and $2,000 in the aggregate for qualifying conditions (D), (E), or (F) described above.

Cost Mitigation: Tax Credits
To help offset the cost of paid leave, the Act provides for credits against quarterly payroll taxes imposed on the employer in an amount equal to 100 percent of the qualified family leave wages and paid sick leave wages paid by an employer, subject to the requirements of forthcoming Treasury Department regulations.

Effective Date
The Act takes effect not later than 15 days after the date the Act is enacted so April 2, 2020.

Sunset
The paid family leave requirement expires on December 31, 2020.