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In Response to COVID-19, Congress Expands FMLA and Extends Emergency Sick Pay to Employees

By March 20, 2020March 23rd, 2022COVID-19, Patricia Bland Featured

By: Patricia Bland

On March 18, 2020, the Families First Coronavirus Response Act (the “Families First Act”) was enacted to expand or extend employment benefits to employees affected by COVID-19. Among other provisions relating to education and nutrition programs, the Families First Act provides employees with paid sick leave in the event the employee is unable to work or telework due to COVID-19. The provisions impacting employers and employees are two-fold: The first provision expands FMLA leave and the second provision extends paid sick leave to persons impacted by COVID-19. Employers will be allowed a credit against payroll taxes due and payable by the employer for an amount equal to 100% of qualified sick leave wages paid by the employer under the Families First Act.

Emergency Family Medical Leave Expansion Act.

Under the Emergency Family Medical Leave Expansion Act (“FMLA Expansion Act”), beginning April 2, 2020 and extending through December 31, 2020, 12 weeks of FMLA leave are extended during the COVID-19 state of emergency to eligible employees who are unable to work or telework because they must care for a child due to the closure of the child’s school or unavailability of the child’s care provider. An eligible employee is one who has been employed by an employer with fewer than 500 employees for a period of at least 30 days. Unlike existing FMLA leave, employers must provide paid leave under the FMLA Expansion Act for each day in excess of 10 days. The rate of pay for the paid leave must be no less than 2/3 of the employee’s regular rate of pay, capped at $200 per day, or a total of paid leave of $10,000. The Secretary of Labor has the authority to exclude certain health care providers or emergency responders from the definition of eligible employees or to exempt small business with 50 or fewer employees from the requirements of the FMLA Expansion Act. In general, the other provisions of FMLA as they relate to restoration of an employee’s position and prohibition on retaliation apply to the leave granted under the FMLA Expansion Act unless the employer has fewer than 25 employees and, due to economic conditions, the position previously held by the employee no longer exists despite reasonable efforts by the employer to restore the employee to their position.

Emergency Paid Sick Leave Act

Under the Emergency Paid Sick Leave Act, employers must provide 80 hours of paid sick leave to an employee who is unable to work or telework due to a need for leave resulting from COVID-19. Paid sick leave is available to employees who: (i) are subject to quarantine or isolation order, (ii) are advised by a health care provider to self-quarantine or are caring for someone subject to such advisement, (iii) are experiencing symptoms of COVID-19, (iv) are caring for someone described in (i) or (ii) above, or (iv) are caring for a child if school or child care has closed. The rate of pay for the paid leave is calculated at the employee’s regular rate of pay, but must not exceed $511 per day with respect to (i), (ii) or (ii), capped at $5,110 in the aggregate, or $200 per day with respect to (iv), capped at $2,000 in the aggregate. Employers may not require an employee to use employer-provided leave such as PTO or sick leave before using the emergency paid sick leave. The provision of employer provided emergency paid sick leave is applicable to all employers with fewer than 500 employees and is available immediately to all employees, regardless of their start date.


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