As seen in Bank Director

From lobby closures to Paycheck Protection Program loans, the COVID-19 pandemic has thrown a lot at banks and other financial services providers during this pandemic. One more item to add to the list is the Families First Coronavirus Response Act (FFCRA).

The FFCRA is not one law but a suite of laws targeted at lessening the effects of the pandemic, including two laws that establish paid leave requirements on covered employers: the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). As is the case with many employment laws and rules, a bank that fails to comply with the FFCRA paid leave requirements does so at its peril.

Who are covered employers?
The paid leave requirements generally apply to all private employers with fewer than 500 employees. There are limited exceptions to the Emergency Family and Medical Leave Expansion Act leave requirements for employers with fewer than 50 employees relating to leave for school and child care closures. A bank looking to take advantage of the EFMLEA exceptions should closely study the circumstances and the exception criteria. Further, while the federal rules apply only to small (under 500 employee) employers, some states’ paid leave laws cover large employers as well.

Who are eligible employees?
Employee eligibility is one area where Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act diverge. Paid leave under the EFMLEA is available to employees who have been employed for a minimum of 30 calendar days. For EPSLA related leave, all employees qualify, regardless of their length of employment. EFMLEA and EPSLA each apply to part-time as well as full-time employees and neither require an employer to provide paid leave to furloughed employees.

When can employees utilize paid leave benefits?
This is another area where the two statutes diverge. The EPSLA provides for paid leave if the employee is unable to work (or telework) because the employee:

1. Is subject to a federal, state or local quarantine or isolation order.
2. Has been advised by a health care provider to self-quarantine.
3. Is experiencing symptoms of COVID-19 and is seeking a diagnosis.
4. Is caring for an individual covered by (1) or (2) above.
5. Is caring for a son or daughter whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 precautions.
6. Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

The Emergency Family and Medical Leave Expansion Act, as its name implies, is an expansion of the Family and Medical Leave Act and is triggered by the need for the employee to care for someone else, in this case the employee’s child. Specifically, EFMLEA provides for paid leave to employees who must care for a minor child because of a coronavirus-related school closure or childcare provider loss. EFMLEA benefits only are available if the employee is unable to work from home or telework. We should note, however, that employees who become ill with COVID-19 or are caring for family members who have COVID-19 may still be covered by the FMLA original unpaid “serious health condition” provision.

What are the paid leave benefits?
Under the Emergency Paid Sick Leave Act, full-time employees are entitled to 80 hours (i.e., 10 days) of emergency paid sick leave at either full-rate (reasons 1, 2 and 3 above) or two-thirds rate (reasons 4, 5 and 6 above). The benefit is capped at $511 per day when the employee is absent for reasons 1, 2 or 3, and $200 per day for reasons 4, 5 and 6. Part-time employees are entitled to receive a proportionately similar amount of leave based on their average hours worked in a two-week period.
For 10 weeks an eligible employee is entitled to receive up to two-thirds of their regular rate of pay, capped $200 per day under the EFMLEA. We should note here, that an employee can take advantage of the EPSLA benefit of up to $200 per day for the first 10 days of leave to care for a child due to school or childcare closing, bringing the maximum paid leave benefit to $12,000 for child care reasons.

How does a bank pay for this new requirement?
To soften the blow on banks and other employers of the mandatory paid leave under the FFCRA, the law provides for a dollar-for-dollar refundable tax credit for amounts paid by eligible employers. The refundable tax credit applies to all EPSLA and EFMLEA wages paid during the period from April 1 to Dec. 31, 2020. Compliance with the eligibility and record-keeping requirements of the law will be critical to the bank qualifying for the tax credit.