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HOW FAMILIES FIRST CORONAVIRUS RESPONSE ACT APPLIES ONCE THE SCHOOL TERM RESUMES

Worker's Comp Lawyer Lars AndersonAs school is about to resume, many employers are wondering how the expanded FMLA under the new Families First Coronavirus Response Act (“FFCRA”) will apply.  When school is closed or regular daycare facilities are closed due to COVID-19, under the Families First Coronavirus Response Act, parents are entitled to twelve weeks of leave.  The first two weeks are unpaid and the next ten weeks are paid at two-thirds the employee’s average daily rate.  What this means is that once school resumes, if there is an outbreak in a school or if the state shuts down schools for any period of time, parents may be eligible to apply for the FFCRA extended Family Medical Leave Act.  If the parent/employee hasn’t used the two weeks of emergency sick leave called for under the FFCRA, then the first two weeks of unpaid extended FFCRA Family Medical Leave could be paid under this portion of the law.  However, the two weeks of emergency paid sick leave is only available one time in the 2020 calendar year.  Therefore, if it has been used once already, the employee would not be eligible in this instance.

Another thing to remember is that the extended FFCRA FMLA leave does not give any additional leave time.  Meaning that if an employee has used any amount of FMLA time in the preceding twelve months, that time is deducted from the available extended FFCRA FMLA leave time.  Therefore, if an employee used four weeks previously for surgery or to care for a sick family member, the employee would only be eligible for eight weeks of extended FFCRA FMLA leave.

Finally, an important part of this law is that the extended FFCRA FMLA leave is only available if the employee is unable to perform the functions of their job.  This includes teleworking.  Therefore, if you as an employer allow your employee to telework and provide flexibility to allow for them to care for their child while the child is home from school or daycare, the employee would not be eligible for the extended FFCRA FMLA leave.  This could include having a varying schedule such that the employee is allowed to work for part of the time in the morning and part of the time in the evening after school hours.

Finally, should an employee qualify for the extended FMLA time, the employer would be eligible for a tax credit for the wages paid under this leave.

If you have any questions regarding how the FFCRA extended FMLA leave will apply once the school term resumes or the availability of the tax credits, please do not hesitate to contact me.

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