Paid Family Medical Leave Act Expansion under COVID-19 (Public Health Emergency Leave)

This article will detail the current guidelines around the expansion of Paid Family Medical Leave (i.e., Public Health Emergency Leave) in light of COVID-19.

SUMMARY

The FFCR Act amended the FMLA to add a paid leave requirement for parents or caregivers who have lost access to childcare services due to COVID-19. Employers with fewer than 500 employees are required to provide public health emergency leave for all employees who have worked for their employer for at least 30 days. Payments for paid public health emergency leave related to COVID-19 are not subject to the employer portion of Social Security tax.


STAY UP TO DATE:

Always stay up to date with COVID-19: Consolidated Appropriations Act Updates for 2021.

Safe Harbor for FFCR Act Compliance

Covered employers will need to come into compliance with the Act (effective 4/1/20) as quickly as possible. The Department of Labor will be announcing a temporary non-enforcement policy for 30 days in order to provide a “period of time for employers to come into compliance with the Act”. Under this policy, Labor will not bring an enforcement action against any employer for violations of the Act, so long as the employer has acted reasonably and in good faith to comply with the Act. In lieu of enforcement/investigative action, the Department of Labor will provide compliance assistance to eligible employers during this 30-day grace period. 

Small Business Exemption for FFCR Act

Small businesses (fewer than 50 employees) will be eligible for an exemption from both the FMLA Amendment (and Emergency Paid Sick Leave) provisions if such requirements would “jeopardize the ability of the business to continue” as a going concern. Impacted small businesses will be able to claim the exemption “on the basis of simple and clear criteria” that the Department of Labor will address in emergency guidance. 

ELIGIBILITY

Employees would need to provide notice to their employer to take the leave. Employees generally would need to show that they are unable to sufficiently work in-person or telework because of a loss of access to educational or child care services due to reasons related to the coronavirus.  

After the first 10 days of unpaid leave, a period of paid leave would follow for employees who need to care for children younger than 18 years of age whose school or child care facility is closed because of the coronavirus, or whose child care provider is unavailable because of the outbreak. For those who qualify for FMLA, the period of paid public health emergency leave is the remainder of the balance of the 12 work weeks of leave available under FMLA. 

PAYMENTS AND LIMITS FOR FEDERAL PAID FAMILY LEAVE EARNING CODE

The following pay codes must be used until March 31, 2021:

  • Federal Paid Medical Leave - Tier 1 

    • The amount of paid sick leave provided cannot exceed $511 per day, and a total of $5,110 (10 days total.)

    • These earnings will be eligible for credit and will be exempt from employer Social Security taxes.

  • Federal Paid Medical Leave - Tier 2

    • The amount of paid sick leave provided cannot exceed $200 per day, and a total of $2,000 (10 days total.)

    • These earnings will be eligible for credit and will be exempt from employer Social Security taxes.

We are creating two new pay codes that must be used for the plan's extension from April 1 to September 31, 2021:

  • ARPA Federal Paid Medical Leave - Tier 1

    • ​​​​​​​​​​​​​​These earnings are not exempt from employer Social Security taxes.

  • ARPA Federal Paid Medical Leave - Tier 2

    • ​​​​​​​​​​​​​​​​​​​​​These earnings are not exempt from employer Social Security taxes.

TIP:

Do not use the previous Federal Paid Medical Leave earnings (Federal Paid Medical Leave - Tier 1 and Tier 2) after March 31. If you do, you risk going over the plan's limits.

Refer to American Rescue Plan Act: Federal Paid Medical Leave for more information!

You can find some helpful information on the American Payroll Association (APA) Website. Updates are occurring frequently, so we recommend bookmarking and following these resources regularly to ensure you are using the most up-to-date information.

Namely will also be updating our materials as soon as new guidance is made available and ensuring that our system is set up to accommodate these changes.