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TABS Webinar Report

TriNet – Emergency paid sick leave and Emergency family and medical leave act

24 March 2020

Speakers:

  • Samantha Wellington from Trinet
  • John Polson from Fisher & Phillips LLP

Emergency Paid sick Leave

  • Employers with 1-499 employees
  • Any employee who works for employer is eligible (no minimum days/hours of employment)

Must provide paid sick time if the employee is unable to work or telework because:

  • The employee is subject to a federal, state and local quarantine related to COVID-19.
  • The employee has been advised by a healthy care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is experiencing symptoms of COVID-19.
  • The employee is caring for an individual who is subject to an order of self-quarantine.
  • The employee is caring for a child / children if school is closed/unavailable.
  • The employee is experiencing any other substantially similar condition specified by HHS.

Payment

  • From point 1 to 3, paid at employee’s regular rate capped at $511 per day and $5110 in the aggregate.
  • From points 4 to 6, paid at ⅔ the employee’s regular rate capped at $200 per day and $2000 in the aggregate.

Additional rules

  • Sick leave does not carry over.
  • Employer may not require employee as a condition of paid leave to find a replacement to cover schedule hours.
  • Employee may first use this paid sick time under this law before other paid leave.
  • Employers may not require employees to use other paid leave provided by the employer before using this paid sick leave.

Requirement

  • Employers: must post a notice regarding the requirement of the law.
  • Employees: After the first workday an employee receives paid sick leave, the employer may require the employee to follow reasonable notice procedure in order to continue receiving such paid sick time.

Tax credit

Employers subject to the requirements are entitled to a refundable tax credit equal to the amount of the qualified paid sick leave requirements paid by the employer per quarter.

The tax credits for qualified paid sick leave wages are capped at:
$511 per day per person for reasons from point 1 to 3 (above page 1)
$200 per day per person for reasons from point 4 to 6 (above page 1)

Emergency Family and Medical Leave Act

  • Significantly extends FMLA on a temporary basis.
  • Employers with 1-499 employees.
  • Any employee who worked for 30 days prior to leave and has a qualifying reason is eligible.
  • Provides up to 12 weeks of job-protected leave paid after the first 10 days.

Qualifying reasons:

  • 12 weeks of job protected leave when the employee is unable to work or telework if he has a child under 18 if its school is closed due to the public health emergency. Likely FMLA definition of son or daughter will apply.
  • Public health emergency
    An emergency with respect to COVID-19 declared by a federal, state or legal authority.

Payment

  • First 10 days may be unpaid.
    An employee may elect vacation, sick leave… to cover any portion of first 10 days.
    Employer cannot require an employee to substitute such leave.
  • After the first 10 days.
    Compensated at ⅔  of the regular rate.
    Part time / irregular employees => based on the average number of hours worked in prior months.
    Pay capped at $200 per day and $10 000 in the aggregate per employee.

Job reinstatement

  • If 25 or more employees, traditional restoration obligation.
  • If fewer than 25 employees, the traditional job reinstatement of the FMLA does not apply if the following conditions are met:
  • The employee takes E-FMLA.
  • The position of the employeedoes not exist due to economic changes.
  • The employer makes reasonable efforts to restore the employee to an equivalent position.

Requirements
Employers= No new notice requirement but all employers must display a general notice (FMLA poster) about the FMLA.
Employees= Where the necessity for leave is foreseeable, an employee shall provide the employer with notice of leave “as is practicable”.

Ressources:

https://www.trinet.com/insights/how-small-and-medium-size-businesses-can-prepare-for-the-impact-of-covid-19-part-2?utm_source=on24&utm_medium=webinar&utm_campaign=cta

https://www.trinet.com/insights/how-small-and-medium-size-businesses-can-prepare-for-the-impact-of-covid-19-part-1?utm_source=on24&utm_medium=webinar&utm_campaign=cta

https://www.trinet.com/insights/families-first-coronavirus-response-act-what-it-means-for-your-small-and-medium-size-business?utm_source=on24&utm_medium=webinar&utm_campaign=cta

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