The New EPSLA and EFMLEA

The New EPSLA and EFMLEA: What Employers Need to Know

April 2, 2020, by Laura Brosh

A Notice of Rights is required to be posted for all employees, if you have employees that are teleworking, email a copy of the notice to them to insure that you are compliant with this requirement  (the notice can be obtained here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf)

What if I can’t afford to pay my employees for two to twelve weeks of leave?

Fortunately, EPSLA and EFMLEA are subsidized and employers will receive credit from the IRS for any payments made under these acts.  Covered employers can take advantage of the paid leave credits and retain and access funds that they would otherwise pay to the IRS in payroll taxes.  If this is not sufficient to cover the cost of leave, then employers can seek an expedited advance from the IRS by completing Form 7200.  (https://www.irs.gov/forms-pubs/about-form-7200)

Further, any payments made for allocable qualified health plan expenses and the employer’s share of Medicare tax, paid during qualifying EPSLA/EFMLEA leave between April 1, 2020 and December 31, 2020 are also refundable as tax credits to employers.

Can I fire an employee for taking EPSLA/EFMLEA Leave?

No.  Like FMLA, leave under EPSLA and EFMLEA is protected.  If you fire an employee for taking leave under either act you may be held liable for monetary damages.  This means the employee may sue you and require that you pay not only the wages they would have received had they still been employed, but also additional amounts depending upon the circumstances.  Similarly, you cannot retaliate or interfere with an employees right to take leave under EPSLA or EFMLEA. 

If I furlough my employees or have to lay off employees, am I required to provide them with paid leave?

No.  The act does not entitle employees who have been laid off or furloughed to receive paid sick leave.  However, be careful that you are not wrongfully terminating an employee for engaging in a protected activity—ie taking or requesting EPSLA or EFMLEA leave.

Can I require documentation from my employees who are requesting EPSLA/EFMLEA leave?

Yes.  This is advisable, as you will need to be able to provide documentation to the IRS if you intend to take advantage of the tax credit for wages paid under EPSLA/EFMLEA.  While the IRS and the Department of Labor have yet to specify what type of documentation is appropriate, employers are encouraged to be flexible in what documentation is required as it may be difficult for employees to get in to see their health care providers to get the necessary documentation.  Currently, employers are encouraged to look at FMLA guidelines to determine what type of documentation would be appropriate with the caveat of flexibility.

Am I required to provide intermittent leave under EPSLA/EFMLEA?

Whether to provide intermittent leave under either EPSLA or EFMLEA is left to the discretion of the employer.  You may allow intermittent leave or not.  However, be aware that intermittent leave may still be required under FMLA or the ADA even if it is not required under EPSLA/EFMLEA.  If you choose to permit intermittent leave, an employee can take intermittent leave for any increment of time that is agreed upon by both you and the employee.  Intermittent leave can be used for individuals who are teleworking and caring for others, or caring for a child whose school or place of care is closed, among other reasons. For example, if an employee is teleworking, but is having to care for a child whose school or place of care is closed, you and the employee may agree to a schedule that allows the employee to take leave throughout the day to care for the child.

If you have any questions about whether the EPLSA/EFMLEA applies to your business or have questions about its implementation, please contact us.