Four ways that the $2T Senate bill could impact the paid leave law that’s already stressing you out. Plus, an intermittent leave update!

It only took me two bottles of NoDoz and a Five Hour Energy chaser to get through the CARES Act, that 880-page behemoth that the Senate passed on Wednesday night.

But, before I shower and search for my classiest Simpsons T-shirt to wear for today’s Facebook Live and YouTube chat at noon eastern, I’d like to highlight a few ways that the Families First Coronavirus Response Act (Phase II) could change if the CARES Act (Phase III) becomes law.

Clarification on stuff we already pretty much knew.

If it wasn’t apparent already, the CARES Act makes it crystal clear that the $511 per day ($5,110 aggregate) / $200 per day ($2,000 aggregate) limits for the various forms of paid sick leave are per employee.

Some re-hired employees may be eligible for expanded FMLA leave.

As y’all know, all employees are eligible to receive paid sick leave, and employees that are on the payroll for at least 30 days can get expanded FMLA for when they can’t work or telework and must care for a minor son or daughter that is home because school is closed.

But, how are those thirty days calculated? Well, according to the CARES Act, it would include anyone who was laid off by an employer after March 1, 2020, had worked for the employer for at least 30 of the 60 calendar days before the employee’s layoff, and was re-hired by the same employer.

Advanced tax credits.

Ah, you’re perking up now, aren’t you?

Hey! Hands off my NoDoz!

The FFCRA provides that an employer may get a 100% quarterly tax credit against social security taxes for qualified sick leave and family leave wages. The CARES Act goes one step further and says that the Treasury can advance the credit up to the amount you pay for qualified sick leave and family leave wages.

We knew this was coming when the IRS announced it last week. And we still don’t know how exactly it’s going to work. There should be some forms and regulations and guidance and whatnot coming soon. But, at least the Senate has co-signed it.

The CARES Act also confirms that the Secretary of the Treasury will waive certain penalties under the Internal Revenue Code for any employer that fails to deposit social security taxes in anticipation of taking the credit.

Federal contractors catch a break too.

Under the CARES Act, the federal government can modify government contracts to reimburse federal contractors for the cost of providing any paid leave.

But, here’s what we still don’t know.

I’m still wondering…

• Can an employee take intermittent expanded FMLA leave? (I think so.) Wonder no more! My friend, Barbara Wells who practices employment law in Alabama, just emailed me this updated guidance from the DOL that came out overnight. Here is her write-up. Basically, an employee can take intermittent expanded FMLA or paid sick leave — but only with an employer’s permission.
• Are these stay-healthy, stay-at-home, stay-safe, shelter-in-place orders popping up across the country enough to trigger paid sick leave coverage due to a quarantine or isolation order related to COVID-19? (I think not.)
• Is a furloughed employee eligible to receive PSL and E-FMLA? (I’d say it depends on whether the employees continues to perform any work)
• How will the DOL exempt small businesses with fewer than 50 employees from the FFCRA paid leave requirements?

See you in a few hours for our live chat.

Noon Eastern on Facebook Live and YouTube.

Remember: I’m not your lawyer. You’re not my client. So, there is no attorney-client privilege. And I’m not giving legal advice. You’re smart enough not to rely upon anything an employment law blogger hopped up on caffeine with four kids in the house for two straight weeks would tell you, right?