On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was passed. The FFCRA has two important new laws intended to provide relief for employees in the form of paid leave or paid extended leave and for employers in the form of tax credits and exemptions. The two laws are the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”). This blog is the first in a series of blogs to break down how FFCRA will impact small businesses.
What is EFMLEA?
The EFMLEA applies to employers with 500 employees or less. Many considered it an expansion of Family and Medical Leave Act (“FMLA”), however, it is broader in its coverage. FMLA had an exception for employers who had less than 50 employers within a 75-mile radius; however many small businesses, specifically those with less than 50 employees, who were never subject to FMLA will find themselves subject to EFMLEA because that exception was not included in the new legislation.
The EFMLEA provides 12 weeks of leave to employees who are required to care for a child because of a school closing or not having access to childcare. EFMLEA leave has narrower applicability than FMLA, as it requires an employee to have a child at home that requires care.
When does an employee qualify for EFMLEA?
To qualify for EFMLEA an employees must have been employed for at least 30 calendar days, their leave must be related to a public health emergency (e.g., COVID-19), and the employee must be unable to work (or telework) due to
- a need to care for a son or daughter under 18 years of age because the school or place of care has been closed or
- the child care provider of a son or daughter is unavailable due to a public health emergency (e.g. COVID-19).
It is important to note that this legislation doesn't include any other family members.
What benefits do employees receive from EFMLEA?
The maximum period of leave under EFMLEA is 12 weeks. The first 10 days of any leave under EFMLEA are unpaid (unless the employee chooses to use any accumulated Paid Time Off (“PTO”) or the Federal sick leave that is available under EPSLA to cover the first 10 days of leave).
After the first 10 days of EFMLEA leave, the employee is entitled to paid leave of the lesser of these two options:
- Two-thirds of his or her regular rate or pay, or
- $200/day, not to exceed $10,000 in total.
Here is a flowchart to assist in the analysis.
Can an employee qualify for EFMLEA and EPSLA?
Yes, you can have an employee who qualifies for both. If an employee is entitled to both EPSLA and EFMLEA benefits, the maximum amount of leave he or she can receive is 12 weeks and the maximum amount he or she can receive is $12,000. This cap applies to employees at all pay levels.
Note: We are expecting new regulations as soon as April 2020 that will exempt many small businesses from the parameters of the EFMLEA. Specifically, small businesses with 50 employees or less are expected to be exempt from the requirement to provide this extended leave if the leave requirements will jeopardize the viability of the business as a going concern.
We Are Here to Help
The Browne Firm is dedicated to helping our clients navigate these rapidly changing laws as seamlessly as possible. We have created a resource page to help clients in need. Do not hesitate to reach out to our office at (914) 530-3070 if you need guidance regarding how to comply with federal and local restrictions while moving your business through these difficult times. You are not alone. We are all in this together.