Authored by Dean R. Dietrich
There continues to be a great deal of questions about the paid benefit that employers are required to provide to an employee who is off work due to an obligation to care for a child in the following circumstances:
1. The school that the child attends is closed;
2. The place of care that the child goes to is closed;
3. The normal childcare provider for the child is unavailable.
Please remember that in each of the above instances, the action must be related to a Coronavirus event.
The Department of Labor has issued a new Poster for the various paid leave entitlements under the Families First Coronavirus Response Act. Under this Poster and under the Regulations covering the Act, an employee is entitled to take up to 12 weeks of Expanded Family and Medical Leave during the period of April 2, 2020 through December 31, 2020. These 12 weeks run concurrently with any 12 weeks that an employee may claim under the existing Family and Medical Leave law. As a result, the total amount of leave that an employee could take may be reduced if the employee has already taken other Family and Medical Leave.
In addition, if an employee is taking this Expanded Family Leave, the employer may require the employee to use other leave that is available to the employee under Company Policies such as personal leave or vacation. That time (personal leave or vacation) would run concurrently with the Expanded Family Leave and not constitute an extension of the available 12 weeks.
The most confusing aspect of this Expanded Family Leave for taking care of a child is the amount of pay that an employee may receive under the Act. An employee is eligible to receive two-thirds of the regular rate of pay that the employee received times the scheduled number of hours per week. A part-time employee would receive the two-thirds pay for the normal hours that the employee worked per week prior to taking the time off.
The first two weeks of Expanded Family Leave is without pay OR the employee may be allowed to use paid sick leave under one of the other provisions of the Act is qualified. Further, the employee could take other paid benefits provided by the employer if available for the first two weeks of this Expanded Family Leave. After the first two weeks, the employee is eligible to take Expanded Family Leave for an additional 10 weeks with pay at the two-thirds rate. There is a cap on the amount of pay that an employee is allowed to receive during this additional 10-week period – the employer is required to pay up to $200 per day or $12,000 in total pay to the employee. The Regulations reference $10,000 in aggregate payment to the employee but the Poster refers to $12,000 as the total payment under this Extended Family and Medical Leave provision which I believe includes the first $2,000 total which is referenced under different qualifying conditions.
It is clear that the maximum amount of pay that an employer must provide is a maximum of $200 per day and $10,000 in total pay for the 10 weeks that the employee may take after the first two weeks (which would likely be without pay). Under the maximum, an employee could receive $1,000 per week ($200 per day x 5 days) and be eligible for 10 weeks of that pay. This is different than the 80-hour limitation that applies for any other qualifying reason under the Extended Family and Medical Leave or the Paid Sick Leave benefits.
Employers can take a deduction from their social security tax payments for the amount of money paid to an employee under the Extended Family and Medical Leave provision.
