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FAQ’S FOR EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT (EFMLA) A PRACTICLE GUIDE FOR EMPLOYERS



The Families First Coronavirus Response Act (FFCRA), which includes the Emergency Family and Medical Leave Expansion Act (EFMLA) provides paid leave provisions that became effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.

WHO DOES THIS APPLY TO?

Applies to employers with fewer than 500 employees.


WHO’S ELIGIBLE FOR THIS?

Employees are not required to meet the standard eligibility requirements under the Family and Medical Leave Act. Any employee who has been employed with the company for at least 30 calendar days is considered eligible. Employers may be able exclude employees who are health care providers or emergency responders.


WHO CAN TAKE THIS EMERGENCY LEAVE?

Eligible employees may take up to 12 weeks of job protected leave due to employee being unable to work (not be offered telework options), who is required to care for their son or daughter (under 18 years of age) where the place of care has been closed, or the childcare provider is unavailable.


HOW CAN EMPLOYEES TAKE THIS LEAVE?

Employees should provide written notice to employer when at all possible.


WHAT’S AN EMPLOYERS OBLIGATION TO PAY THE EMPLOYEE WHILE OUT?

  • EFMLA is available when childcare or schools are closed under the Families First Coronavirus Response Act (FFCRA):

  • Weeks 1 & 2 are unpaid, unless the employee elects to substitute Emergency Sick Time (at 2/3 of their pay for 10 days capped at $200 per day, or any available PTO/Accrued Sick/Vacation sponsored by the employer); AND

  • Up to an additional 10 weeks (weeks 3-12), employees would be paid at 2/3 pay up to $200 per day.

  • If the employee had a varying schedule before the leave, use the average number of hours the employee was scheduled over the last six months, for calculating pay. If no period exists use a reasonable expectation.

  • Include leave time away in the calculation of average hours. Note: Be prepared- some employees may elect their employer sponsored PTO, sick or vacation time, since this would be paid at 100% versus the 2/3 pay provided by the FFCRA.


DOES AN EMPLOYER NEED TO HOLD A JOB? JOB REINSTATEMENT

  • The same reinstatement provisions apply as under traditional FMLA; the employer must make reasonable attempt to return employee to work for up to a year following leave.

  • Some exceptions apply to job reinstatement for employers with less than 25 employees if certain conditions are met:

  • The job no longer exists because of changes affecting employment caused by an economic downturn or other operating conditions that affect employment caused by a public health emergency, the employer makes reasonable efforts to return the employee to an equivalent position and the employer makes efforts to contact a displaced employee if anything comes up within a year of when they would have returned to work.

  • Additional exemptions may exist for employers with fewer than 50 employees, where the viability of the business is put at risk.


HOW YOU BENEFIT AS AN EMPLOYER: PAYROLL TAX CREDIT |HEALTH INSURANCE

Employer credits apply to both the EFMLA expansion. Expect a dollar for dollar credit for sick leave and paid Emergency FMLA wages paid. Employer portion of the health insurance premiums is to be credited by the days covered by EFMLA and emergency sick leave.


IS LEAVE JOB PROTECTED?

Yes, the Act offers the same job protection as the traditional Family Medical Leave Act. The employer must make reasonable efforts to restore the employee to the same or an equivalent position, and if the reasonable efforts fail, the employer must make efforts to contact the employee and reinstate the employee if an equivalent position becomes available within a one-year period beginning on the earlier of (a) the date on which the qualifying need related to a public health emergency concludes, or (b) the date that is 12 weeks after the date the employee’s leave started. However, the EFMLA’s requirement that an employee be restored to the same or equivalent position after leave does not apply to an employer with fewer than 25 employees if the employee’s position no longer exists due to economic conditions or other changes in the employer’s operations that affect employment and are caused by the public health crisis during the period of leave.


WHO PAYS FOR EFMLA?

The employer. For the first 10 days, the time away may be PTO, vacation, sick time or unpaid. The employee may also elect to use the 10 days of emergency paid sick leave. After the first 10 days of eligible emergency family leave (EFMLA), the employer will pay the employee two thirds of the employee’s regular rate of pay for the number of hours they would normally be scheduled to work, capped at $200/day and $10,000 in total.


Employers will receive a dollar for dollar credit (up to the allowable limits) for wages paid against the employer’s portion of Social Security taxes. Employers will also receive credits for health care premium costs. Please seek guidance from your accounting professional relative to taking advantage of all appropriate tax credits resulting from COVID-19


WHAT NOTICE MUST AN EMPLOYEE PROVIDE FOR LEAVE?

The EFMLA provisions require employees to provide the employer with “notice of leave as is practicable.” Once an employee provides the notice, they have the 10-day period to use Company provided benefits (PTO, vacation, or sick time) if available, utilize the Emergency Paid Sick Leave or take unpaid time off if they choose.


IS THERE AN AGE LIMIT ON CHILDREN OUT OF SCHOOL FOR QUALIFICATION?

18 years of age.


WHAT WOULD BE CONSIDERED A LOSS OF CHILDCARE?

A local, state, or federal level mandate to close elementary, secondary schools, or daycare closures.


DOCUMENTATION

At this time, it is unknown if specific documentation will be required (similar to traditional FMLA).


To support employers and employees Rothmeyer | Rothmeyer continues to provide updated COVID-19 information on our Employer Resources, Employee Resources, as well as our Key Updates and Legislative Updates pages.


Please contact us at Rothmeyer | Rothmeyer we’re ready to assist with all you HR needs!

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