Additional Guidance Regarding Emergency Family and Medical Leave Expansion Act

Additional Guidance Regarding Emergency Family and Medical Leave Expansion Act

As you are aware on March 18, 2020, the Families First Coronavirus Response Act was signed into law. Yesterday, the Department of Labor issued additional guidance regarding the Emergency Family and Medical Leave Expansion Act (EFMLEA). This memo outlines guidance for the Emergency Family and Medical Leave Expansion Act only. This law requires employers of 500 or fewer employees and employers of government employees to provide 12 weeks of job-protected leave to all full-time, part-time, and temporary employees who have been on the job for at least 30 days.

As of March 25, 2020, the following updated guidance from the Department has been received.

  • Effective Date is April 1, 2020 and expires December 31, 2020
  • Eligibility—The employee is unable to work or telework due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.
  1. Employees that were laid off not earlier than March 1, 2020, had worked for the employer for not less than 30 of the last 60 calendar days prior to the employee’s layoff, and was rehired by the employer are also eligible for the EMFLEA.
  • Pay—The first 10 days of leave unpaid and there is a cap on the pay provided.
  1. While the first 10 days of leave are supposed to be unpaid, an employee may choose to utilize, if applicable, the paid leave that is available under the Emergency Paid Sick Leave Act for this 10-day period. Alternatively, the employee may substitute the unpaid leave with any accrued paid leave (vacation, personal, medical, or sick leave) they may otherwise have available.
  2. After the first 10 days of unpaid leave, employees must be paid 2/3 their regular rate of pay.
  3. This paid leave is capped at $200 per day and $12,000 in total for the 12 weeks of EFMLEA and the Emergency Paid Sick Leave.  
  • An employer cannot require an employee to use emergency paid sick leave or other paid benefit time, but the employee may choose to do so.
  • The Act allows employers of “emergency responders” (i.e. police and fire) and “health care providers” to exclude these employees from eligibility. We will provide an update if/when additional regulation becomes available from the Secretary of Labor.
  • Tax Credits—If you are a covered employer with eligible employees, you can retain federal payroll taxes to help offset the Emergency Family and Medical Leave. You are entitled to a refundable credit against Social Security and Medicare taxes. There is a limit to the amount of credit given which is contained in the Act. Finally, an allowance is provided for credit for certain qualified health plan expenses. “Qualified Health Plan Expenses” is defined as amounts paid or incurred by the employer to provide and maintain a group health plan but only to the extent that such amounts are excluded from the gross income of employees. There is a denial of double benefit restriction, so we suggest consulting with your finance professionals on the tax credit. There is an exception contained in subparagraph (e)(4) of Section 7001 excluding the tax credit for any government of the State, or political subdivision thereof (i.e. local government).
  • Restoration to Position—An employee may be restored to their original position.
  1. Employers with 25 or more employees must return the employee to the same or substantially similar position using existing FMLA rules.
  2. Employers with less than 25 employees may not have to return employees to work, but conditions apply. All of the following conditions must be met in order to deny the return to work request:
    1. The employee took leave to care for a child based upon school closure or the unavailability of childcare due to COVID-19; and
    2. The employee’s position no longer exists because of economic conditions occasioned by COVID-19; and
    3. The employer makes “reasonable efforts” to restore the employee to their position; and
    4. The reasonable efforts fail; and
    5. The employer tries to contact the employee if an equivalent position becomes available for one year starting on the earlier of: (1) the date the qualifying need related to COVID-19 ends (school goes back in session) or (2) a date 12 weeks after the employee’s leave started.
  • Violations of the EFMLEA shall be handled the same as violations of the FMLA.
  • Notice must be provided to employees. A copy of the Department of Labor’s Employee Rights Poster may be found at the following website:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf