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Keeping you informed about the rapidly changing ACA environment and how it’s affected by COVID-19

We know that workplace challenges often create the greatest stress on HR teams who are working diligently to keep their workforce healthy and safe. That's why we are committed to sharing what we know around regulatory changes and their bearing on health reform, insurance eligibility, payroll and more.

To keep you in the know, here's our Ask the Expert question of the week:

Q. How should an employer manage employees’ requests for family leave to home school their children while schools are closed during the pandemic?

A: In response to COVID-19, schools have shut their doors for the remainder of this school year, forcing parents to monitor their children’s learning at home, oftentimes as they, themselves, try to work from home. The situation is causing some employees to request leaves of absence to reduce stress.

Under the Families First Coronavirus Response Act (FFCRA), passed by Congress in March, employers who have fewer than 500 employees are obligated to grant such requests. In particular, a new provision under the FFCRA – the expanded Family Medical Leave Act (FMLA) – covers employees who are unable to work because they must care for children at home due to COVID-19 related school closures or unavailable childcare. However, unlike other FMLA leave provisions, under the expanded Act employees are to be compensated for most, if not all, of their leave. Eligible employees may use vacation, personal, medical or sick leave to cover the first 10 days. After that, employers must pay employees two-thirds of their regular pay rate, multiplied by the employee’s normal hours of service in a given week. The expanded Act, which is in effect until December 31, 2020, provides for up to 12 weeks of compensation.

It’s vital that employers understand how the expanded FMLA provision affects eligibility in order to mitigate the risk of accruing costly ACA employer responsibility fines. Employers should follow existing paid-time-away-from-work rules: Paid sick hours will be calculated the same as hours worked, other paid sick time taken, or paid time off taken.

Furthermore, FMLA leave is typically treated as a protected unpaid leave period, and the leave time period is either:

  • Excluded from the measurement period when averaging hours to determine if the employee meets the 30 hours/week or 130 hours/month standard to be considered full-time, or
  • The employer elects to credit the employee with their average number of hours during the leave of absence period and then measures the employee to see if they meet the full-time standard for the measurement period.

In this particular situation, the employer measures the sick, vacation or other PTO hours the employee uses for the first 10 days. For the remaining leave time, the employee will continue to be credited hours at their typical hours of service each week but is paid at the lower rate of pay. This results in a paid leave of absence with hours credited, so that the employee is not negatively impacted during their measurement period.

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