Understanding the new COVID-19 sick leave and FMLA policies


FMLA, sick leave and financial support webinar

The AOA is holding a webinar on Tuesday March 31 at 9 p.m. ET to provide doctors an update on new changes for sick leave and family medical leave act requirements during the COVID 19 Public Health Emergency. The webinar will also review financial support options for doctors to help practices through this challenging time.

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On March 19, AOA reported on new Sick Leave and Emergency Family Medical Leave Act (FMLA) requirements for businesses following the COVID-19 Public Health Emergency.

Doctors may have questions regarding how and when these new provisions will be implemented. Frequently asked questions are included below.  

Are there any exemptions for small businesses?

Yes, currently the Department of Labor (DOL) is considering exemptions for businesses with fewer than 50 employees. Congress and the DOL want to ensure that these new requirements do not negatively impact the overall viability of a business. Exemptions are also being considered for employers of health care providers.  

If I employee fewer than 50 employees and am concerned about how providing child care-related paid sick leave and expanded family and medical leave will impact the viability of my business, how do I take advantage of the small business exemption?

This will be addressed in regulations coming soon. At this point, we know that you will be required to document why your business with fewer than 50 employees would face negative consequences to meet the leave requirements.   

How long will these new leave requirements be in place?

The new law takes effect on April 2, 2020 and will remain effective until Dec. 31, 2020.  

How do I need to notify my employees of these benefits?

Employers must post a notice that advises employees of their rights under the Act. The Secretary of Labor is required to create a notice by March 25. AOA will disseminate to members.  

Will the government assist me in paying out for these new sick and family leave requirements?

Yes, employers will be provided refundable tax credits against their employer portion of Social Security taxes for 100% of the qualified sick leave and family leave wages paid in accordance with the Act. The Internal Revenue Service (IRS) has clarified the following:    

  • Employers receive 100% reimbursement for paid leave pursuant to the act.
  • Health insurance costs are also included in the credit.
  • Employers face no payroll tax liability.
  • Self-employed individuals receive an equivalent credit.
  • An immediate dollar-for-dollar tax offset against payroll taxes will be provided.
  • Where a refund is owed, the IRS will send the refund as quickly as possible.
  • Requirements subject to 30-day non-enforcement period for good faith compliance efforts.

To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form that will be released in late March and AOA will make available to members. Read IRS guidance. Be sure to have your payroll company set up new accounts for FMLA and Sick Leave related to COVID 19.  

Can you give me an example of how these new tax benefits will work?

Yes, the IRS has offered this example:

"If an eligible employer paid $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $5,000 of the $8,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $3,000 on its next regular deposit date.

If an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments and file a request for an accelerated credit for the remaining $2,000.

Equivalent child care leave and sick leave credit amounts are available to self-employed individuals under similar circumstances. These credits will be claimed on their income tax return and will reduce estimated tax payments."

Emergency Family Medical Leave Act (EFMLA)

The FMLA provision of the law states that employees must have worked 30 days prior. Does that mean 30 calendar days or 30 work days?

The employee must have been employed for at least 30 calendar days to be eligible for EMFLA. Full-time, part-time and salary are all included.  

Which employees are eligible for FMLA?

Employee is defined as any individual employed by an employer.  

Is FLMA only available for those employees that have kids in school that was cancelled?

Employees can take leave to care for children when their schools are closed, or they have a child care worker who is unavailable to care for the child due to the public health emergency.  

Does private school apply? Only public school?

The leave is available for employees who are caring for students in elementary or secondary school. Elementary school is defined as a nonprofit institutional day or residential school, including a public elementary charter school. A secondary school is defined as a nonprofit institutional day or residential school, including a public secondary charter school, that provides secondary education, through grade 12. Some private schools are nonprofit while others are for-profit.  

What about day care?

One of the reasons that employees can qualify for Sick Leave pay and EFMLA is when a child care provider, including a day care, is unavailable.  

If a day care is open periodically, does that employee get FMLA?

The legislation does not address the impact of intermittent closures and sets the threshold at qualifying for this type of sick leave or FMLA when a child care provider is not available.  

Is it for any child under 18 years old?

Yes, FLMA is available for employees who must leave work to care for a child under 18 years old.

What if an employee doesn't have a kid under 18? Do they get any FMLA?

FMLA is intended for leave necessary to care for a child. The new paid Sick Leave provisions account for other scenarios when leave may be needed such as to care for a family member with COVID-19.  

Is the employee required to work at all during the 10 weeks of FMLA?

Under federal law, an employer could allow-but could not require-an employee to work from home during FMLA absence.  

How does a small business determine if they can afford 10 weeks of FMLA for 15 staff members? Ten staff members? Three staff members?

Employers with fewer than 50 employees should wait until DOL issues regulations on exemptions for businesses of this size in April before calculating impact of the EFMLA provisions.  

Are employers with <25 exempt or some other number or some other metric exempt from providing paid 10-week FMLA?

DOL is currently working on regulations for a possible exclusion for businesses with fewer than 50 employees.  

Are there payment limits under FMLA?

Yes, paid leave cannot exceed $200 per day and $10,000 in the aggregate.  

New paid sick leave benefits

Are there tenure requirements for the new paid sick leave benefit?

Employees are eligible for the new paid Sick Leave benefit regardless of the length of their tenure with their employer.  

What if an employee cares for an elder parent or grandparent? What if they aren't the power of attorney?

The new sick leave provisions allow for leave when the employee is caring for any individual who is under an order to quarantine or isolate. Being power of attorney is not a factor.  

How are part-time staff impacted by these provisions?

Under the new sick leave provisions, part-time employees are entitled to paid sick time that is equal to the average number of hours the employee typically works over a two-week period.

I already gave paid time off (PTO) to employees, do I have to give more in addition to the new FMLA and paid sick leave requirements?

Employers may not require eligible employees to first use other paid leave provided by the employer before using paid sick leave. The new paid sick leave will be in addition to any paid sick leave or PTO currently provided by employers.  

How many hours of paid sick leave do employees get?

Full-time employees receive up to 80 hours of sick leave (equivalent of two-weeks of their normal hours). Part-time employees receive the equivalent of the number of hours they would work, on average, during a two-week period. The secretary of labor is required to issue guidelines to assist employers in calculating leave benefits by April 2.  

For what reasons can employees take this type of paid sick leave?

  • The employee is subject to a federal, state or local quarantine or isolation due to COVID-19.
  • A health care provider advised the employee to self-quarantine due to concerns related to COVID-19 (self-imposed quarantine without medical advice does not qualify under the Act).
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for an individual (not limited to family members, although there is a stray reference to family members elsewhere in the Act, so stay tuned) who is either subject to a federal, state, or local quarantine or isolation due to COVID-19 or has been advised to self-quarantine due to concerns related to COVID-19.
  • The employee is caring for the employee's child whose school has been closed or place of care is unavailable due to COVID-19 precautions.
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of Treasury and Labor. The precise meaning of this sixth reason will be clarified by the Secretary of Health and Human Services.  

How much are employees paid for this sick leave?

For reasons 1, 2 and 3 (above), eligible employees will receive paid sick leave at their regular rate (100%), the amount paid cannot exceed $511 per day and $5,110 in total. For reasons 4, 5 and 6 (above), eligible employees will receive paid sick leave at two-thirds (2/3) of their regular rate (the amount paid cannot exceed $200 per day and $2,000 total).  

It seems the sick leave provision for an employee caring for a child unable to go to day care because the day care is closed is the same as the FMLA provision. How are they different?

There are a few differences, first is eligibility. All employees regardless of tenure are eligible for the new paid sick leave benefit. Only employees that have been with the employer for 30 days
are eligible for the FMLA benefit. Sick Leave is paid at 100% of the employee's salary/rate. FMLA is paid at 2/3 of the employee's salary.  

How many times can I use the new sick leave that provides 2 weeks of pay for COVID-19 quarantine, COVID-19 direct care or childcare for my child that has a closed school?

You can use sick leave only once. For example, you have a child that is at a closed school and you are home to provide your child's care, you are allowed to use two weeks at 2/3 pay amount under this sick pay law. After two weeks, FMLA would apply. However, if you later get COVID- 19 and are required to quarantine for two weeks, then you do not get to use this COVID-19 sick pay again for your quarantine (which would have been 100% pay) because you already used it to bridge the gap to your EFMLA. 

If an employee is home with a child because his or her school or place of care is closed, or child care provider is unavailable, does the employee get paid sick leave, expanded family and medical leave, or both-how do they interact?

The employee may be eligible for both types of leave, but only for a total of 12 weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period covers the first 10 workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the employee elects to use existing vacation, personal, or medical or sick leave. After the first 10 workdays have elapsed, the employee will receive two-thirds of his/her regular rate of pay for the hours he/she would have been scheduled to work in the next 10 weeks.

Employees can only receive the additional 10 weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

Are the paid sick leave and expanded family and medical leave requirements retroactive?

No.

If you have additional questions, please contact Kara Webb, Director of Coding and Regulatory Policy at kcwebb@aoa.org