Expanded FMLA (Created by FFCRA, 2020)

Posted on October 15, 2020

Originally published in October 2020, as part of a "Tips" webinar

This article has not been updated for current law since the date of its posting on the website. This article is not intended to provide any legal advice. Please seek advice of your professional council.

Any U.S. federal and state tax advice contained in this communication is not intended or written by the Knox Law Firm to be used, and cannot be used by you, for the purpose of: (i) avoiding penalties under the Internal Revenue Code that may be imposed upon you, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.

Qualifying Reasons

An eligible employee may take expanded Family and Medical Leave (as created by FFCRA in 2020) because they are unable to work due to a need to care for their child whose school or place of care has been closed, or whose childcare provider is unavailable, for reasons related to COVID-19. An eligible employee has need to take expanded Family and Medical Leave for this purpose only if no suitable person is available to care for their child during the period of such leave.

An eligible employee may not take Expanded Family and Medical Leave to care for their child unless, but for a need to care for the child, the employee would be able to perform work for their employer, either at the employee’s normal workplace or by telework.

An employee caring for their child may not take Expanded Family and Medical Leave when the employer does not have work for the employee.

Amount of Leave

An employee is entitled to take up to twelve work weeks of leave through December 31, 2020. Use of Expanded Family and Medical Leave counts toward the twelve workweeks of FMLA leave. Use of FMLA leave is applied toward the twelve workweeks allowed by the Expanded Family and Medical Leave.

Amount of Pay for Expanded FMLA

After the initial two weeks of Expanded Family and Medical Leave, the employer shall pay the employee two-thirds of the employee’s average regular rate, times the employee’s scheduled number of hours for each day of such leave taken.

In no event shall an employer be required to pay more than $200 per day and $10,000 in the aggregate per employee when an employee takes Expanded FMLA for up to ten weeks after the initial two week period of unpaid Expanded FMLA.

If an employee elects or is required to use leave available to the employee under the employer’s policies, such as vacation or personal leave or paid time off, concurrently with Expanded FMLA, the employer must pay the eligible employee a full day’s pay for that day. However, the employer is capped at taking $200 per day or $10,000 in the aggregate in tax credits for expanded FMLA.

Author: Mark T. Wassell

Originally published in October 2020, as part of a "Tips" webinar