Advice for Complying with the New Expanded Family Leave Laws Caused by School and Childcare Closures

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”). The law is in effect from April 1, 2020, until December 31, 2020, and requires that employers provide paid leave to employees who cannot work due to specific COVID-19 childcare situations.  The childcare law is called the “Expanded Family Medical Leave Law.”

The FFCRA law also requires paid sick leave for employees.  See our separate posting regarding the new paid sick leave law.  As explained below, the childcare and paid sick leave laws intersect.

The New Federal Paid Expanded Family Medical Leave Law

Amount of Leave.  The new law provides for 12 weeks of leave (10 paid) related to having to care for a minor child because school was closed or childcare is unavailable because of COVID-19.

If you are an employer who was subject to the FMLA before the emergency legislation (i.e., you have 50 or more employees), the 12 weeks is NOT in addition to the 12 weeks your employees are already allowed under the FMLA.  Also, the 12 weeks of emergency childcare leave is reduced by any other FMLA leave the employee has already used.

Employers Subject to the Law.  The emergency childcare law applies to all private and some public employers who have less than 500 employees.

Who Pays.  The first two weeks are not paid by the employer.  However, the employee will likely be able to have the first two weeks paid under the new sick leave law, described in another posting.

The remaining 10 weeks are paid by the employer, who will be “reimbursed” for the paid wages by a credit against the employer’s pay roll taxes for each calendar quarter; the credit will be in an amount equal to 100 percent of the qualified sick leave wages paid by the employer.  “Qualified” means the employee is out for the reason specified in the law.

Employee Qualifications.  Employees must have been employed by the employer for 30 days or more prior to the requested leave.

Reason for Sick Leave.  The leave is only for employees who are unable to work, including unable to telework, due to a need to care for a child because the child’s school or place of care has been closed or because the child care provider is unavailable due to a public health emergency related to COVID-19.  This leave is not available if the employee is unable to work for any other reason, such as a shelter-in-place order that shuts down a business or results in the employee’s position being eliminated.

Pay Rate and Caps.  After the initial 10 days of leave, the employer must pay the employee not less than 2/3 of their regular rate of pay or minimum wage, whichever is greater. Payment is capped at $200 per day and $10,000 total.

Other Available Leave.  Employees may elect to substitute any accrued paid vacation, PTO, or sick leave for unpaid leave.  Unlike “regular” FMLA, an employee cannot be required to use any existing sick leave or PTO for the purposes covered by this law.

Exceptions:  Employers with less than 50 employees may be exempt from these requirements if compliance would jeopardize the viability of the business as an on-going concern.  Also, certain healthcare providers and emergency responders are exempt. Employers must follow the DOL’s guidelines on this.

Job Protection:  Like “regular” FMLA, the new law provides for job protection for the employees taking it.  There is a limited exception for employers with less than 25 employees where the employee’s position no longer exists upon return to work due to economic conditions or other changes caused by the coronavirus emergency, and the employer has made reasonable efforts to restore the employee to an equivalent position.  Employers must follow the DOL’s guidelines on this.

Documentation.  Employees are required to provide employers with documentation stating (1) employee’s name; (2) dates for which leave is requested; (3) the name of the child; (4) the qualifying reason for the leave; (5) the name of the school, place of care or child care provider that has closed/is unavailable; (6) either an oral or written statement that the employee is unable to work because of the qualifying reason; and (7) a representation that no other suitable person will be caring for the child during the period for which the employee is taking leave.

Employers may also ask employees to provide additional “material” that is needed in order for the employer to request the tax credits under the law.

Maintaining Documentation.  Employers must retain the above documentation for four years, including documentation of an employee’s oral statements.

Notice Required by Employers.  Employers are required to post notices developed by the US Department of Labor.  The notices are considered posted if the employer mails or emails the notices to employees.  The posters can be found here:  https://www.dol.gov/general/topics/posters.

No Discrimination/Retaliation.  Employers cannot retaliate against an employee who has taken or asked to take leave under the new law.