Emergency FMLA and Emergency Paid Sick Leave: What You Need to Know 

On April 1, the new regulations for Emergency Family Medical Leave Expansion Act (EFMLEA) and emergency paid sick leave (EPSL) provisions of the Families First Coronavirus Response Act (FFCRA) went into effect. The law broadened employee’s benefits for leave connected to potential COVID-19 related sickness or impact on their families for caring for a sick child or family member. Additionally, the law outlined exemptions to the new law for health care providers.  

Below is what you need to know to implement the changes related to the new regulation, who is exempt from the regulation, and what providers need to do today to be in compliance with FFCRA.  

What Providers Need to Do Today 

The new legislation requires “covered employers” to post a notice of the new law in a conspicuous place for all employees to see. Further, if you have staff that is teleworking from home, notice must be sent to those individuals by electronic means. While many LAI members are going to exempt their employees from the EFMLEA and EPSL provisions, you still must post the notice. You are a “covered employer” under the law and must comply with all regulations impacting that class of entities. The exemption for health care providers relates to classification of staff under a covered employer, not the status of the covered employer themselves.  

A version of the required poster can be found here.  

LAI is seeking guidance on what course providers should take in communicating the exemption of the staff from EFMLEA and EPSL while meeting the compliance of the law by posting the notice of benefits.  

Health Care Provider Exemption  

The Department of Labor (DOL) on March 28 provided guidance on exemptions from the new regulations for health care providers and emergency responders. The guidance from DOL includes questions and answers addressing critical issues such as the definition of a “health care provider.” Important for members, #56 of the guidance expands the definition of a “healthcare provider” who may be excluded by their employer from EFMLEA and EPSL to include anyone employed at a nursing facility, retirement facility, nursing home, home health care agency, or any other similar institution, employer or entity including an entity that contracts with any of the previously listed institutions/entities to provide services or to maintain the operation of the facility. While not explicitly stated in the rule, most analysis concludes that assisted living falls into this category as well.  

However, the question now is: can I still offer EPSL or EFMLEA benefits even with exempted employees? The answer to that question is: yes. You are not required to provide the benefit, but you may elect to. You also may elect to provide one benefit and not the other. For instance, if you are concerned that your exemption will force employees who may have experienced “close contact” with COVID-19 to come to work and put vulnerable individuals at risk and have the staffing to do so, you may elect to grant employees the benefits under EPSL. In this instance, you are not then required to provide additional benefits under the EFMLEA to individuals that benefitted from EPSL. You can have one without the other.   

Who Will Cover the Cost for the New Benefit?  

The new law provides for tax credits through the employer’s contributions to FICA, currently 6.2% to cover the cost for the EFMLEA and ESPL portion of the benefit. While there is not Treasury Department guidance or regulations on how this will work, LeadingAge believes it means that the employer will not have to pay its portion of payroll taxes and if this isn’t enough to cover the entire cost, the federal government will be refunded as an overpayment. While originally it looked like the employer would have to wait for reimbursement, it looks now like the employer can simply not pay in its quarterly obligation. 

Emergency Family Medical Leave Expansion Act – Details  

Employees eligible for the benefit: 

An employee who has been employed by their employer for 30 calendar days may take paid EFMLEA leave if the employee is unable to work or telework because the employee is caring for a child under 18 years of age because the child’s school or child care has been closed as a result of a public health emergency declared by a governmental authority related specifically to COVID-19.  

Which employers are required to provide paid EFMLEA?  

Employers with fewer than 500 employees are required to provide this paid FMLA leave. There are no exclusions but an employer with fewer than 50 employees may be exempted if imposing such requirements “would jeopardize the viability of the business as a going concern.”  

As noted above, while health care providers have exempt employees from EFMLEA. While the employer can opt out of the providing the benefit, they are still a “covered employer” within the definition of the regulation.  

Duration of Leave: 

Employees will have up to 12 weeks of leave to use from April 1, 2020, through December 31, 2020, for the purposes stated above. This time is included in and not in addition to the total EFMLEA leave entitlement of 12 weeks in a 12-month period. 

Pay During Leave: 

Leave will be unpaid for the first 10 days of leave; however, employees may use any accrued paid vacation, sick or personal leave during this time. The employee may also elect to use the paid leave provided under the Emergency Paid Sick Leave Act. After the first 10 days, leave will be paid at two-thirds of an employee's regular rate of pay for the number of hours the employee would otherwise be scheduled to work. Pay will not exceed $200 per day, and $10,000 in total. Any unused portion of this pay will not carry over to the next year. 

Credit: SHRM, LeadingAge