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COVID-19: Families First Coronavirus Response Act Paid Sick Leave and Family Medical Leave Expansion

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During the first two weeks of unpaid expanded family and medical leave, you may not simultaneously take paid sick leave under the EPSLA and preexisting paid leave, unless your employer agrees to allow you to supplement the amount you receive from paid sick leave with your preexisting paid leave, up to your normal earnings. 
April 10, 2020

After the outbreak of the COVID-19 pandemic, two programs were launched as part of the Families First Coronavirus Response Act (FFCRA) to help employees affected by the impacts of the virus. This article intends to educate and bring awareness of a general nature in order to assist employees in navigating these programs. Please consult with your company’s Human Resources team or an employment attorney before taking any specific action as your situation may have additional considerations. 

Paid Sick Leave

What period is covered?
Full time employees are entitled to up to 80 hours of paid sick leave between April 1, 2020 and December 31, 2020.

What employees are eligible?
The Emergency Paid Sick Leave Act (EPSLA) requires Eligible Employers to provide employees with paid sick leave if the employee is unable to work (including telework) due to any of the following:

  1. The employee (individually, not the business) is under a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  5. The employee is caring for his/her child if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID–19 precautions; or
  6. The employee is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.

What amount do I receive for sick leave?
An employee who is unable to work for reasons due to a COVID-19 circumstance described in (1), (2) or (3) above is entitled to paid sick leave for up to two weeks (up to 80 hours) at the employee’s regular rate of pay, or, if higher, the Federal minimum wage or any applicable State or local minimum wage, up to $511 per day and $5,110 in the aggregate. For more information, see the IRS FAQ What is the rate of pay for qualified sick leave wages if an employee is unable to work due to their own health needs?

An employee who is unable to work due to a COVID-19 circumstance described in (4), (5) or (6) above is entitled to paid sick leave for up to two weeks (up to 80 hours) at 2/3 the employee’s regular rate of pay or, if higher, the Federal minimum wage or any applicable State or local minimum wage, up to $200 per day and $2,000 in the aggregate. For more information, see IRS FAQ What is the rate of pay for qualified sick leave wages if an employee is unable to work because he or she needs to care for others?

When calculating pay must overtime hours be included?
EPSLA requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. The total number of hours paid under the EPSLA is capped at 80.

What is my regular rate of pay for purposes of the Families First Coronavirus Response Act?
For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave. If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.

What if I am a part-time employee?
Part-time employees are entitled to the number of hours of paid sick leave that the employee works, on average, in a two-week period, or if the employee’s normal scheduled hours are unknown or variable, under other alternative determinations, as provided by Department of Labor (DOL) guidance.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?
If your employer closes after the FFCRA’s effective date (even if you requested leave prior to closure), you will not get paid sick leave under EPSLA or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes for lack of business or because it was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?
If your employer closes while you are on paid sick leave under EPSLA or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes, you are no longer entitled to paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes for lack of business or because it was required to close pursuant to a Federal, State or local directive.

As an employee, may I use my employer’s preexisting leave entitlements and my FFCRA paid sick leave concurrently for the same hours?
During the first two weeks of unpaid expanded family and medical leave, you may not simultaneously take paid sick leave under the EPSLA and preexisting paid leave, unless your employer agrees to allow you to supplement the amount you receive from paid sick leave with your preexisting paid leave, up to your normal earnings.


Family and Medical Leave Expansion

What employees are eligible?
Under the Emergency Family and Medical Leave Expansion Act (EFMLEA), an employee who is unable to work (including telework) because of a need to care for a child whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 precautions (reason #5 of the Paid Sick Leave), is entitled to expanded family and medical leave.

What amount do I receive for Family Medical Leave?
An eligible employee is entitled paid family and medical Leave equal to two-thirds of the employee’s regular pay, up to $200 per day and $10,000 in the aggregate. Up to ten weeks of qualifying leave can be counted towards the family and medical leave. Family medical leave and paid sick leave can work together, the first two weeks can be paid sick leave (limited to $2,000) and the next 10 weeks can be paid family and medical leave (limited to $10,000). For more information, see IRS FAQ “What is included in “qualified family leave wages”?”

When calculating pay must overtime hours be included?
EFMLEA requires your employer to pay you for hours you would have been normally scheduled to work even if that is more than 40 hours in a week.

As an employee, may I use my employer’s preexisting leave entitlements and my expanded family and medical leave concurrently for the same hours?
After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA, you may elect—or be required by your employer—to take your remaining expanded family and medical leave at the same time as any existing paid leave that, under your employer’s policies, would be available to you in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if you are not ill.

What documentation should I provide my employer?
A written request from the employee that provides:

  1. The employee’s name
  2. The date or dates for which leave is requested
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason.
  4. A statement that the employee is unable to work, including telework, for such reason. In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
  5. In the case of leave request based on a school closing or child care provider unavailability, the   statement should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave. With respect to the employee’s inability to work or telework because of the need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

 

Readers should not act upon information presented without individual professional consultation.

Any federal tax advice contained in this communication (including any attachments): (i) is intended for your use only; (ii) is based on the accuracy and completeness of the facts you have provided us; and (iii) may not be relied upon to avoid penalties.

 

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