Below is a quick FAQ regarding the Emergency Family and Medical Leave Expansion Act (Emergency FMLA)
Q: Which employers are covered by the FFCRA Emergency FMLA Act?
A: Employers with 500 or fewer employees, except that businesses with under 50 employees may claim exemption from leave requirements if it would jeopardize the business. It is unclear at this time how employers would demonstrate an exemption should apply and we anticipate any future regulations would address this issue.
Q: Which employees are eligible to take leave under the FFCRA Emergency FMLA Act?
A: Employees who have been employed for at least 30 calendar days are eligible, except the Secretary of Labor may exclude health care providers and emergency responders from being considered eligible employees. We anticipate that future regulation may further define which employers are considered healthcare providers and emergency responders.
Q: How much leave are eligible employees entitled to take?
A: Eligible employees are entitled to take up to 12 weeks of job protected leave.
Q: Are employees entitled to an additional 12 weeks of leave under the FFCRA Emergency FMLA Act, or is the total leave for all FMLA reasons limited to 12 weeks?
A: Total leave under the FMLA, including leave under the FFRCA and for previously existing FMLA-qualifying situations, is limited to 12 weeks.
Q: Are there any exceptions to the requirement that the leave be job-protected?
A: Employers with fewer than 25 employees are not required to provide job-protected leave for an employee taking leave if the employee’s position no longer exists following leave due to operational changes occasioned by a public health emergency provided that: (1) the employer makes reasonable efforts to restore the employee to an equivalent position; and (2) the employer makes reasonable attempts to contact the employee for a period of oneyear following a certain period if an equivalent position becomes available.
Q: What are the reasons an employee can take leave?
A: Eligible employees can take leave for “a qualifying need related to a public health emergency.” A qualifying need related to a public health emergency for purposes of FFCRA Emergency FMLA Act is limited to when an employee is unable to work (or telework) due to a need to care for a son or daughter under the age of 18 if the child’s school or place of care has closed OR the child care provider of such child is unavailable due to the public health emergency.
Q: Must leave under this provision be paid?
A: The first 10 days of the leave can be unpaid. An employee may elect – but cannot be required – to use accrued vacation, personal or medical or sick leave for those days. The remainder of the leave must be paid at two-thirds the employee’s regular rate of pay, for the number of hours the employee would otherwise be scheduled to work. For employees who have weekly working hours that fluctuate, the employer is allowed to take an average over a sixmonth period. If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work controls. Paid leave is subject to a limit of $200 per day, and up to a total amount of $10,000.
Q: Can I take a credit for the amount I pay my employees in paid leave?
A: Yes. See Section Tax Credits for Paid Sick and Paid Family and Medical Leave below.
Q: For how long is the FFCRA Emergency FMLA Act in effect?
A: The FFCRA Emergency FMLA Act will sunset effective December 31, 2020.
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