Yesterday, the Senate passed and the President signed the Emergency Family and Medical Leave Act to address the COVID-19 pandemic. The Entire Act is called “Families First Coronavirus Response Act.” Parts of it apply to small employers (i.e., under 50 employees) and parts only to larger employers (i.e., over 50 employees) and, interestingly, very little of it to giant employers (i.e., over 500 employees). There are three parts to it: 1) paid sick and childcare leave; 2) paid family leave (because the kiddos are home from school) and 3) payroll tax credits for private sector employers. There are exemptions for healthcare workers and employees who can telework (i.e., work from home), but not all exemptions are automatic. There are also compensation caps on how much employers have to pay employees per day and per year. The Act terminates on December 31 of this year (unless, of course, Congress reauthorizes it but no one is thinking at this stage that this is likely – possible maybe – but not likely). The leave entitlements also expire (so they cannot bank this time for later). The Act becomes effective within 15 days.
Paid Sick and Childcare Leave
This is for 80 hours (or pro rata amount for part-timers) under certain conditions and it expires when they return to the workplace. It applies when the employee or someone the employee is caring for (note not necessarily immediate family) is under an self-isolation or quarantine order or medical directive, the employee is showing COVID-19 symptoms and is seeking a medical diagnosis, the employee is caring for his or her own child sent home from daycare or school because of this pandemic, or the employee is suffering from another medical condition to be later specified by HHS. This must render the employee unable to work from home (i.e., it does not apply to employees who can work from home).
The employee must provide reasonable notice. There is no tenure requirement (i.e., applies to new employees too). For the employee’s own illness, the employees must be paid the higher of their regular rate of pay, federal minimum wage or local minimum wage, but is capped at $511/day or $5110 per year. For childcare or to care for others and children, the pay is 2/3 of their regular rate, but is capped at $200/day or $2,000/year.
The DOL is empowered to exempt certain healthcare employees, emergency responders, and small employers (with fewer than 50 employees) if this would jeopardize the ongoing viability of the business.
There is a provision for calculating the entitlement for irregular schedules.
This provision will be enforced under the FLSA. It also prohibits employers from requiring the employee to first use other types of accrued leave and from discharging, disciplining or discriminating employees who take or request leave. Employees are not entitled to be paid out for unused sick leave time under this legislation when they are terminated, resign or retire.
Emergency FMLA for childcare
This expands the FMLA for certain purposes to all employers (with less than 500 employees) and to all employees who have been employed at least 30 days at that employer. It gives the DOL the ability to exempt as employees healthcare providers and emergency responders and businesses with less than 50 employees. It applies when the employee cannot work or telework because of their own childcare responsibilities caused by the pandemic.
The first 10 days are unpaid, but see the provision above and the employee may to use accrued paid leave (i.e., PTO, vacation, sick, personal). There is no provision permitting the employer to require that election. The employee will then be paid not less than 2/3 of their regular rate for each day of work missed, not to exceed $200/day or $10,000 per year.
The FMLA’s standard job restoration provision will apply to employers with more than 25 employees. For smaller employers, the Act contemplates that the employer will not have jobs available due to economic conditions, but they should make reasonable efforts and then contact the employee as equivalent jobs become available over the next year.
As noted, the DOL can exempt certain employees, but exemptions for small employers will be granted only if the leave requirement would jeopardize the business as an ongoing concern. Employers with fewer than 50 employees cannot be sued by individuals.
There will be payroll tax credits (not to exceed the caps). I will not outline those here, but you should check with your tax attorney or accountant. I have included the statutory text below
I will update as I learn more and as the DOL puts out guidelines and regulations.
DIVISION C—Emergency Family and Medical Leave Expansion
Act
SEC.
3101. Short title.
This Act may be
cited as “Emergency Family and Medical Leave Expansion Act”.
SEC.
3102. AMENDMENTS TO THE FAMILY AND MEDICAL LEAVE ACT OF 1993.
(a)
Public health
emergency leave.—
(1) IN GENERAL.—Section 102(a)(1) of the Family
and Medical Leave Act of 1993 (29
U.S.C. 2612(a)(1)) is amended by adding at the end the following:
“(F) During the period beginning on the
date the Emergency Family and Medical Leave Expansion Act takes effect, and
ending on December 31, 2020, because of a qualifying need related to a public
health emergency in accordance with section 110.”.
(2) PAID LEAVE REQUIREMENT.—Section 102(c) of
the Family and Medical Leave Act of 1993 (29
U.S.C. 2612(c)) is amended by striking “under subsection (a)” and inserting
“under subsection (a) (other than certain periods of leave under subsection
(a)(1)(F))”.
(b)
Requirements.—Title
I of the Family and Medical Leave Act of 1993 (29
U.S.C. 2611 et seq.) is amended by adding at the end the following:
“SEC.
110. Public health emergency leave.
“(a)
Definitions.—The
following shall apply with respect to leave under section 102(a)(1)(F):
“(1) APPLICATION OF CERTAIN TERMS.—The
definitions in section 101 shall apply, except as follows:
“(A) ELIGIBLE EMPLOYEE.—In lieu of the
definition in sections 101(2)(A) and 101(2)(B)(ii), the term ‘eligible
employee’ means an employee who has been employed for at least 30 calendar
days by the employer with respect to whom leave is requested under section
102(a)(1)(F).
“(B) EMPLOYER THRESHOLD.—Section 101(4)(A)(i)
shall be applied by substituting ‘fewer than 500 employees’ for ‘50 or more
employees for each working day during each of 20 or more calendar workweeks in
the current or preceding calendar year’.
“(2) ADDITIONAL DEFINITIONS.—In addition to the
definitions described in paragraph (1), the following definitions shall apply
with respect to leave under section 102(a)(1)(F):
“(A) QUALIFYING NEED RELATED TO A PUBLIC HEALTH
EMERGENCY.—The term ‘qualifying need related to a public health emergency’,
with respect to leave, means the employee is unable to work (or telework)
due to a need for leave to care for the son or daughter under 18 years of age
of such employee if the school or place of care has been closed, or the child
care provider of such son or daughter is unavailable, due to a public health
emergency.
“(B) PUBLIC HEALTH EMERGENCY.—The term ‘public
health emergency’ means an emergency with respect to COVID–19 declared by a
Federal, State, or local authority.
“(C) CHILD CARE PROVIDER.—The term ‘child care
provider’ means a provider who receives compensation for providing child care
services on a regular basis, including an ‘eligible child care provider’ (as
defined in section 658P of the Child Care and Development Block Grant Act of
1990 (42
U.S.C. 9858n)).
“(D) SCHOOL.—The term ‘school’ means an
‘elementary school’ or ‘secondary school’ as such terms are defined in section
8101 of the Elementary and Secondary Education Act of 1965 (20
U.S.C. 7801).
“(3) REGULATORY AUTHORITIES.—The Secretary of
Labor shall have the authority to issue regulations for good cause under
sections 553(b)(B) and 553(d)(A) of title 5, United States Code—
“(A) to exclude certain health care
providers and emergency responders from the definition of eligible employee
under section 110(a)(1)(A); and
“(B) to exempt small businesses with
fewer than 50 employees from the requirements of section 102(a)(1)(F) when the
imposition of such requirements would jeopardize the viability of the business
as a going concern.
“(b)
Relationship to paid
leave.—
“(1) UNPAID LEAVE FOR INITIAL 10 DAYS.—
“(A) IN GENERAL.—The first 10 days for which an
employee takes leave under section 102(a)(1)(F) may consist of unpaid leave.
“(B) EMPLOYEE ELECTION.—An employee may elect to
substitute any accrued vacation leave, personal leave, or medical or sick leave
for unpaid leave under section 102(a)(1)(F) in accordance with section
102(d)(2)(B).
“(2) PAID LEAVE FOR SUBSEQUENT DAYS.—
“(A) IN GENERAL.—An employer shall provide paid
leave for each day of leave under section 102(a)(1)(F) that an employee takes
after taking leave under such section for 10 days.
“(B) CALCULATION.—
“(i) IN GENERAL.—Subject to clause (ii), paid leave under
subparagraph (A) for an employee shall be calculated based on—
“(I) an amount that is not less than
two-thirds of an employee’s regular rate of pay (as determined under section
7(e) of the Fair Labor Standards Act of 1938 (29
U.S.C. 207(e)); and
“(II) the number of hours the employee
would otherwise be normally scheduled to work (or the number of hours
calculated under subparagraph (C)).
“(ii) CLARIFICATION.—In no event shall such paid leave exceed
$200 per day and $10,000 in the aggregate.
“(C) VARYING SCHEDULE HOURS CALCULATION.—In the
case of an employee whose schedule varies from week to week to such an extent
that an employer is unable to determine with certainty the number of hours the
employee would have worked if such employee had not taken leave under section
102(a)(1)(F), the employer shall use the following in place of such number:
“(i) Subject to clause (ii), a number equal to the
average number of hours that the employee was scheduled per day over the
6-month period ending on the date on which the employee takes such leave,
including hours for which the employee took leave of any type.
“(ii) If the employee did not work over such period,
the reasonable expectation of the employee at the time of hiring of the average
number of hours per day that the employee would normally be scheduled to work.
“(c)
Notice.—In
any case where the necessity for leave under section 102(a)(1)(F) for the
purpose described in subsection (a)(2)(A)(iii) is foreseeable, an employee
shall provide the employer with such notice of leave as is practicable.
“(d)
Restoration to
position.—
“(1) IN GENERAL.—Section 104(a)(1) shall not
apply with respect to an employee of an employer who employs fewer than 25
employees if the conditions described in paragraph (2) are met.
“(2) CONDITIONS.—The conditions described in
this paragraph are the following:
“(A) The employee takes leave under
section 102(a)(1)(F).
“(B) The position held by the employee
when the leave commenced does not exist due to economic conditions or other
changes in operating conditions of the employer—
“(i) that affect employment; and
“(ii) are caused by a public health emergency during
the period of leave.
“(C) The employer makes reasonable efforts
to restore the employee to a position equivalent to the position the employee
held when the leave commenced, with equivalent employment benefits, pay, and
other terms and conditions of employment.
“(D) If the reasonable efforts of the
employer under subparagraph (C) fail, the employer makes reasonable efforts
during the period described in paragraph (3) to contact the employee if an
equivalent position described in subparagraph (C) becomes available.
“(3) CONTACT PERIOD.—The period described under
this paragraph is the 1-year period beginning on the earlier of—
“(A) the date on which the qualifying need
related to a public health emergency concludes; or
“(B) the date that is 12 weeks after the
date on which the employee’s leave under section 102(a)(1)(F) commences.”.
SEC.
3103. Employment under multi-employer
bargaining agreements.
(a)
Employers.—An
employer signatory to a multiemployer collective bargaining agreement may,
consistent with its bargaining obligations and its collective bargaining
agreement, fulfill its obligations under section 110(b)(2) of title I of the
Family and Medical Leave Act of 1993, as added by the Families First
Coronavirus Response Act, by making contributions to a multiemployer fund,
plan, or program based on the paid leave each of its employees is entitled to
under such section while working under the multiemployer collective bargaining
agreement, provided that the fund, plan, or program enables employees to secure
pay from such fund, plan, or program based on hours they have worked under the
multiemployer collective bargaining agreement for paid leave taken under
section 102(a)(1)(F) of title I of the Family and Medical Leave Act of 1993, as
added by the Families First Coronavirus Response Act.
(b)
Employees.—Employees
who work under a multiemployer collective bargaining agreement into which their
employers make contributions as provided in subsection (a) may secure pay from
such fund, plan, or program based on hours they have worked under the multiemployer
collective bargaining agreement for paid leave taken under section 102(a)(1)(F)
of title I of the Family and Medical Leave Act of 1993, as added by the
Families First Coronavirus Response Act.
SEC.
3104. Special Rule for Certain Employers.
An employer under
110(a)(B) shall not be subject to section 107(a) for a violation of section
102(a)(1)(F) if the employer does not meet the definition of employer set forth
in Section 101(4)(A)(i).
SEC.
3105. Special Rule for Health Care
Providers and Emergency Responders.
An employer of an
employee who is a health care provider or an emergency responder may elect to
exclude such employee from the application of the provisions in the amendments
made under of section 3102 of this Act.
SEC.
3106. Effective Date.
This Act shall
take effect not later than 15 days after the date of enactment of this Act.
.
. . . .
DIVISION E—Emergency Paid Sick Leave Act
SHORT TITLE
Sec. 5101.
This Act may be
cited as the “Emergency Paid Sick Leave Act”.
PAID SICK TIME REQUIREMENT
Sec. 5102.
(a)
In general.—An employer shall
provide to each employee employed by the employer paid sick time to the extent
that the employee is unable to work (or telework) due to a need for leave
because:
(1) The employee is subject to a Federal,
State, or local quarantine or isolation order related to COVID–19.
(2) The employee has been advised by a
health care provider to self-quarantine due to concerns related to COVID–19.
(3) The employee is experiencing symptoms
of COVID–19 and seeking a medical diagnosis.
(4) The employee is caring for an
individual who is subject to an order as described in subparagraph (1) or has
been advised as described in paragraph (2).
(5) The employee is caring for a son or
daughter of such employee if the school or place of care of the son or daughter
has been closed, or the child care provider of such son or daughter is
unavailable, due to COVID–19 precautions.
(6) The employee is experiencing any other
substantially similar condition specified by the Secretary of Health and Human
Services in consultation with the Secretary of the Treasury and the Secretary
of Labor.
Except that an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.
(b)
Duration of paid sick time.—
(1) IN GENERAL.—An employee shall be entitled
to paid sick time for an amount of hours determined under paragraph (2).
(2) AMOUNT OF HOURS.—The amount of hours of
paid sick time to which an employee is entitled shall be as follows:
(A) For full-time employees, 80 hours.
(B) For part-time employees, a number of
hours equal to the number of hours that such employee works, on average, over a
2-week period.
(3) CARRYOVER.—Paid sick time under this
section shall not carry over from 1 year to the next.
(c)
Employer’s termination of paid sick time.—Paid
sick time provided to an employee under this Act shall cease beginning with the
employee’s next scheduled workshift immediately following the termination of
the need for paid sick time under subsection (a).
(d)
Prohibition.—An employer may not
require, as a condition of providing paid sick time under this Act, that the
employee involved search for or find a replacement employee to cover the hours
during which the employee is using paid sick time.
(e)
Use of paid sick time.—
(1) IN GENERAL.—The paid sick time under
subsection (a) shall be available for immediate use by the employee for the
purposes described in such subsection, regardless of how long the employee has
been employed by an employer.
(2) SEQUENCING.—
(A) IN GENERAL.—An employee may first use the
paid sick time under subsection (a) for the purposes described in such
subsection.
(B) PROHIBITION.—An employer may not require
an employee to use other paid leave provided by the employer to the employee
before the employee uses the paid sick time under subsection (a).
NOTICE
Sec. 5103.
(a)
In general.—Each employer shall
post and keep posted, in conspicuous places on the premises of the employer
where notices to employees are customarily posted, a notice, to be prepared or
approved by the Secretary of Labor, of the requirements described in this Act.
(b)
Model notice.—Not later than 7
days after the date of enactment of this Act, the Secretary of Labor shall make
publicly available a model of a notice that meets the requirements of
subsection (a).
PROHIBITED ACTS
Sec. 5104.
It shall be
unlawful for any employer to discharge, discipline, or in any other manner
discriminate against any employee who—
(1) takes leave in accordance with this
Act; and
(2) has filed any complaint or instituted
or caused to be instituted any proceeding under or related to this Act
(including a proceeding that seeks enforcement of this Act), or has testified
or is about to testify in any such proceeding.
ENFORCEMENT
Sec. 5105.
(a)
Unpaid sick leave.—An employer who
violates section 5102 shall—
(1) be considered to have failed to pay
minimum wages in violation of section 6 of the Fair Labor Standards Act of 1938
(29
U.S.C. 206); and
(2) be subject to the penalties described
in sections 16 and 17 of such Act (29
U.S.C. 216; 217) with respect to such violation.
(b)
Unlawful termination.—An employer
who willfully violates section 5104 shall—
(1) be considered to be in violation of
section 15(a)(3) of the Fair Labor Standards Act of 1938 (29
U.S.C. 215(a)(3)); and
(2) be subject to the penalties described
in sections 16 and 17 of such Act (29
U.S.C. 216; 217) with respect to such violation.
EMPLOYMENT UNDER MULTI-EMPLOYER BARGAINING
AGREEMENTS
Sec. 5106.
(a)
Employers.—An employer signatory
to a multiemployer collective bargaining agreement may, consistent with its
bargaining obligations and its collective bargaining agreement, fulfill its
obligations under this Act by making contributions to a multiemployer fund,
plan, or program based on the hours of paid sick time each of its employees is
entitled to under this Act while working under the multiemployer collective
bargaining agreement, provided that the fund, plan, or program enables
employees to secure pay from such fund, plan, or program based on hours they
have worked under the multiemployer collective bargaining agreement and for the
uses specified under section 5102(a).
(b)
Employees.—Employees who work under
a multiemployer collective bargaining agreement into which their employers make
contributions as provided in subsection (a) may secure pay from such fund,
plan, or program based on hours they have worked under the multiemployer
collective bargaining agreement for the uses specified in section 5102(a).
RULES OF CONSTRUCTION
Sec. 5107.
Nothing in this
Act shall be construed—
(1) to in any way diminish the rights or
benefits that an employee is entitled to under any—
(A) other Federal, State, or local law;
(B) collective bargaining agreement; or
(C) existing employer policy; or
(2) to require financial or other
reimbursement to an employee from an employer upon the employee’s termination,
resignation, retirement, or other separation from employment for paid sick time
under this Act that has not been used by such employee.
EFFECTIVE DATE
Sec. 5108.
This Act, and the
requirements under this Act, shall take effect not later than 15 days after the
date of enactment of this Act.
SUNSET
Sec. 5109.
This Act, and the
requirements under this Act, shall expire on December 31, 2020.
DEFINITIONS
Sec. 5110.
For purposes of
the Act:
(1) EMPLOYEE.—The terms “employee” means an
individual who is—
(A) (i) an employee, as defined in section
3(e) of the Fair Labor Standards Act of 1938 (29
U.S.C. 203(e)), who is not covered under subparagraph (E) or (F), including
such an employee of the Library of Congress, except that a reference in such
section to an employer shall be considered to be a reference to an employer
described in clauses (i)(I) and (ii) of paragraph (5)(A); or
(ii) an employee of the Government
Accountability Office;
(B) a State employee described in section
304(a) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16c(a));
(C) a covered employee, as defined in
section 101 of the Congressional Accountability Act of 1995 (2
U.S.C. 1301), other than an applicant for employment;
(D) a covered employee, as defined in
section 411(c) of title 3, United States Code;
(E) a Federal officer or employee covered
under subchapter V of chapter
63 of title 5, United States Code; or
(F) any other individual occupying a
position in the civil service (as that term is defined in section 2101(1) of
title 5, United States Code).
(2) EMPLOYER.—
(A) IN GENERAL.—The term “employer” means a
person who is—
(i) (I) a covered employer, as defined in subparagraph
(B), who is not covered under subclause (V);
(II) an entity employing a State employee described in
section 304(a) of the Government Employee Rights Act of 1991;
(III) an employing office, as defined in section 101
of the Congressional Accountability Act of 1995;
(IV) an employing office, as defined in section 411(c)
of title 3, United States Code; or
(V) an Executive Agency as defined in section 105 of
title 5, United States Code, and including the U.S. Postal Service and the
Postal Regulatory Commission; and
(ii) engaged in commerce (including government), or an
industry or activity affecting commerce (including government), as defined in
subparagraph (B)(iii).
(B) COVERED EMPLOYER.—
(i) IN GENERAL.—In subparagraph (A)(i)(I), the term
“covered employer”—
(I) means any person engaged in commerce
or in any industry or activity affecting commerce that—
(aa) in the case of a private entity or
individual, employs fewer than 500 employees; and
(bb) in the case of a public agency or any
other entity that is not a private entity or individual, employs 1 or more
employees;
(II) includes—
(aa) includes any person acting directly
or indirectly in the interest of an employer in relation to an employee (within
the meaning of such phrase in section 3(d) of the Fair Labor Standards Act of
1938 (29
U.S.C. 203(d)); and
(bb) any successor in interest of an
employer;
(III) includes any “public agency”, as
defined in section 3(x) of the Fair Labor Standards Act of 1938 (29
U.S.C. 203(x)); and
(IV) includes the Government
Accountability Office and the Library of Congress.
(ii) PUBLIC AGENCY.—For purposes of clause (i)(IV), a public
agency shall be considered to be a person engaged in commerce or in an industry
or activity affecting commerce.
(iii) DEFINITIONS.—For purposes of this subparagraph:
(I) COMMERCE.—The terms “commerce” and
“industry or activity affecting commerce” means any activity, business, or
industry in commerce or in which a labor dispute would hinder or obstruct
commerce or the free flow of commerce, and include “commerce” and any “industry
affecting commerce”, as defined in paragraphs (1) and (3) of section 501 of the
Labor Management Relations Act of 1947 (29
U.S.C. 142 (1) and (3)).
(II) EMPLOYEE.—The term “employee” has the same
meaning given such term in section 3(e) of the Fair Labor Standards Act of 1938
(29
U.S.C. 203(e)).
(III) PERSON.—The term “person” has the same
meaning given such term in section 3(a) of the Fair Labor Standards Act of 1938
(29
U.S.C. 203(a)).
(3) FLSA TERMS.—The terms “employ” and “State”
have the meanings given such terms in section 3 of the Fair Labor Standards Act
of 1938 (29
U.S.C. 203).
(4) FMLA TERMS.—The terms “health care
provider” and “son or daughter” have the meanings given such terms in section
101 of the Family and Medical Leave Act of 1993 (29
U.S.C. 2611).
(5) PAID SICK TIME.—
(A) IN GENERAL.—The term “paid sick time” means
an increment of compensated leave that—
(i) is provided by an employer for use during an
absence from employment for a reason described in any paragraph of section
2(a); and
(ii) is calculated based on the employee’s required
compensation under subparagraph (B) and the number of hours the employee would
otherwise be normally scheduled to work (or the number of hours calculated
under subparagraph (C)), except that in no event shall such paid sick time
exceed—
(I) $511 per day and $5,110 in the aggregate
for a use described in paragraph (1), (2), or (3) of section 5102(a); and
(II) $200 per day and $2,000 in the
aggregate for a use described in paragraph (4), (5), or (6) of section 5102(a).
(B) REQUIRED COMPENSATION.—
(i) IN GENERAL.—Subject to subparagraph (A)(ii), the
employee’s required compensation under this subparagraph shall be not less than
the greater of the following:
(I) The employee’s regular rate of pay (as
determined under section 7(e) of the Fair Labor Standards Act of 1938 (29
U.S.C. 207(e)).
(II) The minimum wage rate in effect under
section 6(a)(1) of the Fair Labor Standards Act of 1938 (29
U.S.C. 206(a)(1)).
(III) The minimum wage rate in effect for
such employee in the applicable State or locality, whichever is greater, in
which the employee is employed.
(ii) SPECIAL RULE FOR CARE OF FAMILY MEMBERS.—Subject to
subparagraph (A)(ii), with respect to any paid sick time provided for any use
described in paragraph (4), (5), or (6) of section 5102(a), the employee’s
required compensation under this subparagraph shall be two-thirds of the amount
described in clause (B)(i).
(C) VARYING SCHEDULE HOURS CALCULATION.—In the
case of a part-time employee described in section 5102(b)(2)(B) whose schedule
varies from week to week to such an extent that an employer is unable to
determine with certainty the number of hours the employee would have worked if
such employee had not taken paid sick time under section 2(a), the employer
shall use the following in place of such number:
(i) Subject to clause (ii), a number equal to the
average number of hours that the employee was scheduled per day over the
6-month period ending on the date on which the employee takes the paid sick
time, including hours for which the employee took leave of any type.
(ii) If the employee did not work over such period,
the reasonable expectation of the employee at the time of hiring of the average
number of hours per day that the employee would normally be scheduled to work.
(D) GUIDELINES.—Not later than 15 days after
the date of the enactment of this Act, the Secretary of Labor shall issue
guidelines to assist employers in calculating the amount of paid sick time
under subparagraph (A).
(E) REASONABLE NOTICE.—After the first workday
(or portion thereof) an employee receives paid sick time under this Act, an
employer may require the employee to follow reasonable notice procedures in
order to continue receiving such paid sick time.
REGULATORY AUTHORITIES
Sec. 5111.
The Secretary of
Labor shall have the authority to issue regulations for good cause under
sections 553(b)(B) and 553(d)(A) of title 5, United States Code—
(1) to exclude certain health care
providers and emergency responders from the definition of employee under
section 5110(1) including by allowing the employer of such health care
providers and emergency responders to opt out;
(2) to exempt small businesses with fewer
than 50 employees from the requirements of section 5102(a)(5) when the
imposition of such requirements would jeopardize the viability of the business
as a going concern; and
(3) as necessary, to carry out the purposes of this Act, including to ensure consistency between this Act and Division C and Division G of the Families First Coronavirus
. . . .
DIVISION G—Tax Credits for Paid Sick and Paid Family and Medical
Leave
PAYROLL CREDIT FOR REQUIRED PAID SICK
LEAVE
Sec. 7001.
(a)
In general.—In the case of an
employer, there shall be allowed as a credit against the tax imposed by section
3111(a) or 3221(a) of the Internal Revenue Code of 1986 for each calendar
quarter an amount equal to 100 percent of the qualified sick leave wages paid
by such employer with respect to such calendar quarter.
(b)
Limitations and refundability.—
(1) WAGES TAKEN INTO ACCOUNT.—The amount of
qualified sick leave wages taken into account under subsection (a) with respect
to any individual shall not exceed $200 ($511 in the case of any day any
portion of which is paid sick time described in paragraph (1), (2), or (3) of
section 5102(a) of the Emergency Paid Sick Leave Act) for any day (or portion
thereof) for which the individual is paid qualified sick leave wages.
(2) OVERALL LIMITATION ON NUMBER OF DAYS TAKEN
INTO ACCOUNT.—The aggregate number of days taken into account under paragraph
(1) for any calendar quarter shall not exceed the excess (if any) of—
(A) 10, over
(B) the aggregate number of days so taken
into account for all preceding calendar quarters.
(3) CREDIT LIMITED TO CERTAIN EMPLOYMENT
TAXES.—The credit allowed by subsection (a) with respect to any calendar
quarter shall not exceed the tax imposed by section 3111(a) or 3221(a) of such
Code for such calendar quarter (reduced by any credits allowed under
subsections (e) and (f) of section 3111 of such Code for such quarter) on the
wages paid with respect to the employment of all employees of the employer.
(4) REFUNDABILITY OF EXCESS CREDIT.—
(A) IN GENERAL.—If the amount of the credit
under subsection (a) exceeds the limitation of paragraph (3) for any calendar
quarter, such excess shall be treated as an overpayment that shall be refunded
under sections 6402(a) and 6413(b) of such Code.
(B) TREATMENT OF PAYMENTS.—For purposes of
section 1324 of title 31, United States Code, any amounts due to an employer
under this paragraph shall be treated in the same manner as a refund due from a
credit provision referred to in subsection (b)(2) of such section.
(c)
Qualified sick leave wages.—For
purposes of this section, the term “qualified sick leave wages” means wages (as
defined in section
3121(a) of the Internal Revenue Code of 1986) and compensation (as defined
in section 3231(e) of the Internal Revenue Code) paid by an employer which are
required to be paid by reason of the Emergency Paid Sick Leave Act.
(d)
Allowance of credit for certain health
plan expenses.—
(1) IN GENERAL.—The amount of the credit
allowed under subsection (a) shall be increased by so much of the employer’s
qualified health plan expenses as are properly allocable to the qualified sick
leave wages for which such credit is so allowed.
(2) QUALIFIED HEALTH PLAN EXPENSES.—For
purposes of this subsection, the term “qualified health plan expenses” means
amounts paid or incurred by the employer to provide and maintain a group health
plan (as defined in section
5000(b)(1) of the Internal Revenue Code of 1986), but only to the extent
that such amounts are excluded from the gross income of employees by reason of
section 106(a) of such Code.
(3) ALLOCATION RULES.—For purposes of this
section, qualified health plan expenses shall be allocated to qualified sick
leave wages in such manner as the Secretary of the Treasury (or the Secretary’s
delegate) may prescribe. Except as otherwise provided by the Secretary, such
allocation shall be treated as properly made if made on the basis of being pro
rata among covered employees and pro rata on the basis of periods of coverage
(relative to the time periods of leave to which such wages relate).
(e)
Special rules.—
(1) DENIAL OF DOUBLE BENEFIT.—For purposes of
chapter 1 of such Code, the gross income of the employer, for the taxable year
which includes the last day of any calendar quarter with respect to which a
credit is allowed under this section, shall be increased by the amount of such
credit. Any wages taken into account in determining the credit allowed under
this section shall not be taken into account for purposes of determining the
credit allowed under section 45S of such Code.
(2) ELECTION NOT TO HAVE SECTION APPLY.—This
section shall not apply with respect to any employer for any calendar quarter
if such employer elects (at such time and in such manner as the Secretary of
the Treasury (or the Secretary’s delegate) may prescribe) not to have this
section apply.
(3) CERTAIN TERMS.—Any term used in this
section which is also used in chapter 21 of such Code shall have the same
meaning as when used in such chapter.
(4) CERTAIN GOVERNMENTAL EMPLOYERS.—This credit
shall not apply to the Government of the United States, the government of any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing.
(f)
Regulations.—The Secretary of the
Treasury (or the Secretary’s delegate) shall prescribe such regulations or
other guidance as may be necessary to carry out the purposes of this section,
including—
(1) regulations or other guidance to
prevent the avoidance of the purposes of the limitations under this section,
(2) regulations or other guidance to
minimize compliance and record-keeping burdens under this section,
(3) regulations or other guidance
providing for waiver of penalties for failure to deposit amounts in
anticipation of the allowance of the credit allowed under this section,
(4) regulations or other guidance for
recapturing the benefit of credits determined under this section in cases where
there is a subsequent adjustment to the credit determined under subsection (a),
and
(5) regulations or other guidance to
ensure that the wages taken into account under this section conform with the
paid sick time required to be provided under the Emergency Paid Sick Leave Act.
(g)
Application of section.—This
section shall apply only to wages paid with respect to the period beginning on
a date selected by the Secretary of the Treasury (or the Secretary’s delegate)
which is during the 15-day period beginning on the date of the enactment of
this Act, and ending on December 31, 2020.
(h)
Transfers to Federal Old-Age and
Survivors Insurance Trust Fund.—There are hereby appropriated to the
Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability
Insurance Trust Fund established under section 201 of the Social Security Act (42
U.S.C. 401) and the Social Security Equivalent Benefit Account established
under section 15A(a) of the Railroad Retirement Act of 1974 (45
U.S.C. 231n–1(a)) amounts equal to the reduction in revenues to the
Treasury by reason of this section (without regard to this subsection). Amounts
appropriated by the preceding sentence shall be transferred from the general
fund at such times and in such manner as to replicate to the extent possible
the transfers which would have occurred to such Trust Fund or Account had this
section not been enacted.
PAYROLL CREDIT FOR REQUIRED PAID FAMILY
LEAVE
Sec. 7003.
(a)
In general.—In the case of an
employer, there shall be allowed as a credit against the tax imposed by section
3111(a) or 3221(a) of the Internal Revenue Code of 1986 for each calendar
quarter an amount equal to 100 percent of the qualified family leave wages paid
by such employer with respect to such calendar quarter.
(b)
Limitations and refundability.—
(1) WAGES TAKEN INTO ACCOUNT.—The amount of
qualified family leave wages taken into account under subsection (a) with
respect to any individual shall not exceed—
(A) for any day (or portion thereof) for
which the individual is paid qualified family leave wages, $200, and
(B) in the aggregate with respect to all
calendar quarters, $10,000.
(2) CREDIT LIMITED TO CERTAIN EMPLOYMENT
TAXES.—The credit allowed by subsection (a) with respect to any calendar
quarter shall not exceed the tax imposed by section 3111(a) or 3221(a) of such
Code for such calendar quarter (reduced by any credits allowed under
subsections (e) and (f) of section 3111 of such Code, and section 7001 of this
Act, for such quarter) on the wages paid with respect to the employment of all
employees of the employer.
(3) REFUNDABILITY OF EXCESS CREDIT.—If the
amount of the credit under subsection (a) exceeds the limitation of paragraph
(2) for any calendar quarter, such excess shall be treated as an overpayment
that shall be refunded under sections 6402(a) and 6413(b) of such Code.
(c)
Qualified family leave wages.—For
purposes of this section, the term “qualified family leave wages” means wages
(as defined in section 3121(a) of such Code) and compensation (as defined in
section 3231(e) of the Internal Revenue Code) paid by an employer which are
required to be paid by reason of the Emergency Family and Medical Leave
Expansion Act (including the amendments made by such Act).
(d)
Allowance of credit for certain health
plan expenses.—
(1) IN GENERAL.—The amount of the credit
allowed under subsection (a) shall be increased by so much of the employer’s
qualified health plan expenses as are properly allocable to the qualified
family leave wages for which such credit is so allowed.
(2) QUALIFIED HEALTH PLAN EXPENSES.—For purposes
of this subsection, the term “qualified health plan expenses” means amounts
paid or incurred by the employer to provide and maintain a group health plan
(as defined in section
5000(b)(1) of the Internal Revenue Code of 1986), but only to the extent
that such amounts are excluded from the gross income of employees by reason of
section 106(a) of such Code.
(3) ALLOCATION RULES.—For purposes of this
section, qualified health plan expenses shall be allocated to qualified family
leave wages in such manner as the Secretary of the Treasury (or the Secretary’s
delegate) may prescribe. Except as otherwise provided by the Secretary, such
allocation shall be treated as properly made if made on the basis of being pro
rata among covered employees and pro rata on the basis of periods of coverage
(relative to the time periods of leave to which such wages relate).
(e)
Special rules.—
(1) DENIAL OF DOUBLE BENEFIT.—For purposes of
chapter 1 of such Code, the gross income of the employer, for the taxable year
which includes the last day of any calendar quarter with respect to which a
credit is allowed under this section, shall be increased by the amount of such
credit. Any wages taken into account in determining the credit allowed under
this section shall not be taken into account for purposes of determining the
credit allowed under section 45S of such Code.
(2) ELECTION NOT TO HAVE SECTION APPLY.—This
section shall not apply with respect to any employer for any calendar quarter
if such employer elects (at such time and in such manner as the Secretary of
the Treasury (or the Secretary’s delegate) may prescribe) not to have this
section apply.
(3) CERTAIN TERMS.—Any term used in this
section which is also used in chapter 21 of such Code shall have the same
meaning as when used in such chapter.
(4) CERTAIN GOVERNMENTAL EMPLOYERS.—This credit
shall not apply to the Government of the United States, the government of any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing.
(f)
Regulations.—The Secretary of the
Treasury (or the Secretary’s delegate) shall prescribe such regulations or
other guidance as may be necessary to carry out the purposes of this section,
including—
(1) regulations or other guidance to
prevent the avoidance of the purposes of the limitations under this section,
(2) regulations or other guidance to
minimize compliance and record-keeping burdens under this section,
(3) regulations or other guidance
providing for waiver of penalties for failure to deposit amounts in
anticipation of the allowance of the credit allowed under this section,
(4) regulations or other guidance for
recapturing the benefit of credits determined under this section in cases where
there is a subsequent adjustment to the credit determined under subsection (a),
and
(5) regulations or other guidance to
ensure that the wages taken into account under this section conform with the
paid leave required to be provided under the Emergency Family and Medical Leave
Expansion Act (including the amendments made by such Act).
(g)
Application of section.—This
section shall apply only to wages paid with respect to the period beginning on
a date selected by the Secretary of the Treasury (or the Secretary’s delegate)
which is during the 15-day period beginning on the date of the enactment of
this Act, and ending on December 31, 2020.
(h)
Transfers to Federal Old-Age and
Survivors Insurance Trust Fund.—There are hereby appropriated to the
Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability
Insurance Trust Fund established under section 201 of the Social Security Act (42
U.S.C. 401) and the Social Security Equivalent Benefit Account established
under section 15A(a) of the Railroad Retirement Act of 1974 (45
U.S.C. 231n–1(a)) amounts equal to the reduction in revenues to the
Treasury by reason of this section (without regard to this subsection). Amounts
appropriated by the preceding sentence shall be transferred from the general
fund at such times and in such manner as to replicate to the extent possible the
transfers which would have occurred to such Trust Fund or Account had this
section not been enacted.
(1) regulations or other guidance to
prevent the avoidance of the purposes of this Act, and
(2) regulations or other guidance to
minimize compliance and record-keeping burdens under this section.
SPECIAL RULE RELATED TO TAX ON EMPLOYERS
Sec. 7005.
(a)
In General.—Any wages required to
be paid by reason of the Emergency Paid Sick Leave Act and the Emergency Family
and Medical Leave Expansion Act shall not be considered wages for purposes of section
3111(a) of the Internal Revenue Code of 1986 or compensation for purposes
of section 3221(a) of such Code.
(b)
Allowance of credit for hospital
insurance taxes.—
(1) IN GENERAL.—The credit allowed by section
7001 and the credit allowed by section 7003 shall each be increased by the
amount of the tax imposed by section
3111(b) of the Internal Revenue Code of 1986 on qualified sick leave wages,
or qualified family leave wages, for which credit is allowed under such section
7001 or 7003 (respectively).
(2) DENIAL OF DOUBLE BENEFIT.—For denial of
double benefit with respect to the credit increase under paragraph (1), see
sections 7001(e)(1) and 7003(e)(1).
(c) Transfers to Federal Old-Age and Survivors Insurance Trust Fund.—There are hereby appropriated to the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund established under section 201 of the Social Security Act (42 U.S.C. 401) and the Social Security Equivalent Benefit Account established under section 15A(a) of the Railroad Retirement Act of 1974 (45 U.S.C. 231n–1(a)) amounts equal to the reduction in revenues to the Treasury by reason of this section (without regard to this subsection). Amounts appropriated by the preceding sentence shall be transferred from the general fund at such times and in such manner as to replicate to the extent possible the transfers which would have occurred to such Trust Fund or Account had this section not been enacted.
