Required Emergency FMLA for employers with under 500 employees
On 03/18/2020 Trump signed Bill H.R. 6201 which created a new requirement for all employers with UNDER 500 employees to provide PAID emergency FMLA.
PAID EMERGENCY FMLA
Starting April 1st, 2020 all employers with less than 500 employees will be required to provide Paid Emergency FMLA to their employees. This benefit is for employees who have worked for you for at least the last 30 calendar days. Below we've broken down the who, what, why, how, and when.
Who has to provide Emergency FMLA?
All employers will under 500 employees.*
*There may be an exemption for organizations with under 50 employees. More on that below.
When do you have to start providing Emergency FMLA?
April 1, 2020.
Who's eligible for Emergency FMLA?
All employees who have worked for you for the last 30 calendar days.
Full-time and Part-time employees are covered, though their benefits are different (see below).
What can employees use Emergency FMLA for?
Caring for a son or daughter who's school has closed or childcare provider is closed or unavailable due to COVID-19.
How much time do employees get for Emergency FMLA?
12 weeks. The first two-weeks of Emergency FMLA is unpaid BUT runs concurrently with Paid Sick Leave (PSL).
Part-time employees should receive leave equivalent to their average number of hours worked.
How much do you have to pay employees during Emergency FMLA?
Employees should be paid two-thirds their regular rate of pay UP TO the pay limits of $200 per day or $10,000 for 10 weeks (first 2 weeks are unpaid and run concurrently with PSL).
Employees who have varying wages, piece rates, commissions, or tips, use the regular rate calculation (below) to determine wages to be paid.
Do employers have to provide a notice to employees about Emergency FMLA?
Yes. There is a requirement to post a Model Notice.
What else do you need to know?
If your employees work in a state that already requires paid sick leave benefits, the amount of paid time off you provide may vary.
Are companies with under 50 employees exempt from the Paid Sick Leave requirements?
Sort of. In a recent press release from the Department of Labor they had this to say about the exemption:
"Small businesses with fewer than 50 employees will be eligible for an exemption from the leave requirements relating to school closings or child care unavailability where the requirements would jeopardize the ability of the business to continue. The exemption will be available on the basis of simple and clear criteria that make it available in circumstances involving jeopardy to the viability of an employer’s business as a going concern. The Department of Labor will provide emergency guidance and rulemaking to clearly articulate this standard."
*New from the DOL on March 25th: "To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations. You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave."
What if we provided benefits before April 1st?
The FFCRA is not retroactive, meaning that any benefits provided before 04/01/2020 do not count towards the requirements.
While there may be some relief for small employers, the requirements to provide Paid Sick Leave begins on 04/01/2020 and will be something every employer should be ready to roll out.
We highly recommend reading through the DOL Q&A pages which dive into some of the topics on this page in more detail and provides additional guidance.
Tax credits are available to employers who are providing Paid Sick Leave and Emergency Family and Medical Leave. To learn more visit: https://www.irs.gov/coronavirus
As updates continue to happen on both a federal and state level, we're offering our community of organizations a FREE month of HR resources. To learn more visit: https://www.simplyhrpartners.com/hr-support-pricing
Everything we've created related to the COVID-19 and the FFCRA can be found here: https://www.simplyhrpartners.com/covid-19-resources
The content of this blog provides practical and HR best practice information and is not legal advice. simplyHR LLC does not provide legal advice or other professional services. While every effort is made to provide accurate and current information, laws change regularly and may vary depending on the state and/or the municipality your business operates in. The information provided from simplyHR is provided for informational purposes and is not a substitute for legal advice or your professional judgment. You should review applicable federal, state and municipality laws in your jurisdiction and consult with legal counsel as you deem necessary.