The law is effective April 1, 2020 and the provisions end on December 31, 2020.  The law applies to all employers with fewer than 500 employees.

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Components of H.R. 6201, COVID-19 Relief Legislation

Families First Coronavirus Response Act (FFRCA)

The law is effective April 1, 2020 and the provisions end on December 31, 2020.  The law applies to all employers with fewer than 500 employees.

Temporary Expansion of Family and Medical Leave (EFMLA)

EFMLA would require employers to provide up to 12 weeks of job-protected leave, ten weeks of which would be paid for “qualifying need related to a public health emergency.” 

Qualifying need is defined as “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 [meaning a primary or secondary school only] 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.” 

The leave applies to employees who have been employed for at least 30 calendar days, rather than the 12-month period under the current FMLA.

  • Note: The Secretary of Labor has the regulatory authority to exempt employers with fewer than 50 employees if the provision of paid FMLA leave “would jeopardize the viability of the business as a going concern” but as of March 27th guidance is not available regarding the process to file for an exemption.

Employers with 25 or more employees would be required to reinstate employees after their FMLA leave period ends. Employers with fewer than 25 employers do not have to reinstate an employee if they are experiencing significant economic hardship. 

The first 10 days for which an employee takes leave could be unpaid leave, or the employee could choose to substitute any accrued vacation, personal or sick leave (including in certain instances the emergency paid “sick” leave described below).

After the initial 10 days, the employer would be required to provide paid leave based on an amount that is not less than two-thirds of an employee’s regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work. 

The bill caps the amount of the paid leave, per employee, to no more than $200 per day or $10,000 in the aggregate.

Temporary Paid Sick Leave Program (TPSL)

The law requires employers to provide full-time employees with 80 hours of certain emergency paid “sick” leave related to the coronavirus (with special rules for part-time employees). 

What are the qualifying reasons for leave?

Qualifying reasons for this paid sick leave include:

  1. The employee is subject to 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 either number 1 or 2 above.
  5. The employee is caring for his or her son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID–19 precautions.
  6. 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.

What are the pay requirements?

Paid sick leave must be paid at the employee’s regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons 1-3 above.  The maximum amount of required sick pay per employee is $511 per day and $5,110 in the aggregate. 

An Employee taking leave for reasons 4-6 may be compensated at two-thirds of his or her regular rate of pay, or minimum wage, whichever is greater. In the case of leaves to care for a family member of child, however, the maximum amount of required sick pay per employee is $200 per day and $2,000 in the aggregate. 

For part-time employees whose schedule varies from week to week, special rules apply to calculate the average number of hours. 

 What if the employee has other paid leave available?

An employer may not require an employee to use other types of paid leave provided by the employer before the employee uses the paid sick time available under this law.

Other provisions:

The bill imposes notice requirements and prohibits employers from discharging, disciplining or discriminating against employees who take paid sick leave.

An employer is also prohibited from requiring employees to look for or find replacement employees to cover the hours during which the employee is using the paid sick time.

  • Violations are punishable under the FLSA.

How do employers pay for these new leaves?

Tax Credits for TPSL and EFMLA

A tax credit is created for each calendar quarter for an amount equal to 100 percent of the qualified sick leave wages and qualified family leave wages paid by an employer during the calendar quarter, including a tax credit equal to the amount “of the employer’s qualified health plan expenses as are properly allocable to the qualified family [or sick] leave wages for which such credit is allowed.”

Employers pay the paid leave and can take an immediate tax credit by retaining the amount of payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS.

The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.

If the leave paid is greater than the amount of payroll taxes owed, employers will file a request for a refund from the IRS, which they expect to process in two weeks or less. Note: as of March 27th guidance is not yet available regarding the refund process.

 COVID 19 Testing

The bill imposes that health plans must provide coverage without any cost-sharing requirements, such as deductibles, co-payments and co-insurance, or prior authorization or other medical management requirements, for:

  • The costs of a test to detect or diagnose the virus that causes COVID-19; or
  • Health care provider visits, including telehealth visits, urgent care and emergency room visits, that result in an order for or administration of a test to detect or diagnose the virus that causes COVID-19. 

General information from the Department of Labor: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

FAQs about the leave and requirements: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

FAQs about the notice requirement: https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions

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

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