Hoosier Banker 37 The information in this article is provided for general information purposes only and does not constitute legal advice or an opinion of any kind. You should consult with legal counsel for advice on your institution’s specific legal issues. *There is an exemption for employers, including religious and nonprofit organizations, with less than 50 employees (small businesses) from paying emergency paid sick leave for reasons relating to a child’s school or place of care being closed or child care provider unavailability for COVID-19 precautions and e-FMLA leave, when providing the leave would threaten the viability of the small business as a going concern. The DOL has issued specific guidance on what determination an authorized officer of the business must make in order to claim this exemption. reviewing the regular rate of pay for each week in the six month period prior to the date of leave and then calculating the average of those regular rates, or (2) adding all the compensation that is part of the regular rate for the six month period prior to the date of leave (less exclusions) and dividing that sum by the number of hours worked in that same time period. The leave is in addition to any leave available under the employer’s leave policies. An employer may not require that an employee use or exhaust paid leave available to the employee under the employer’s leave policies before using leave available under the Act. Expanded Family and Medical Leave Under the Act, an employee who has been employed at least 30 calendar days is eligible for up to 12 weeks of expanded paid FMLA (e-FMLA) if the employee is unable to work or work remotely (telework) due to a need for leave to care for a child (under the age of 18) if the child’s school or place of care is closed or child care provider is unavailable due to COVID-19 precautions. The first two weeks of e-FMLA is permitted to be unpaid under FFCRA, although an employee may use accrued available leave under the employer’s leave policies, or if the employee has not yet exhausted the two weeks of emergency paid sick leave under FFCRA, that leave can be applied to the first two weeks of normally unpaid e-FMLA. After the first two weeks, the remaining 10 weeks of e-FMLA is paid at two-thirds of the employee’s regular rate of pay, subject to a cap of $200 per day and $10,000 in total. The DOL has clarified that the combined total of e-FMLA and traditional FMLA is still limited to a total of 12 weeks of leave in a 12-month period. Miscellaneous For employees who are receiving twothirds of their normal pay from emergency paid sick leave or the e-FMLA under the FFCRA, employers may allow employees (but are not required) to supplement the reduced pay with accrued leave available under their leave policies so that the employees receive full normal pay. However, employers are not entitled to (and may not claim) a tax credit for the supplemental amounts. Employers are required to maintain appropriate documentation supporting the FFCRA paid leave if they intend to claim a tax credit. Therefore, employers should request documentation from employees for all leave situations. HB chicago indianapolis st. louis milwaukee A full service business law firm with a simple promise – put you first 201 North Illinois Street, Suite 1400 Capital Center, South Tower Indianapolis, Indiana 46204-4212 T: 317.464.4100 | F: 317.464.4101 | salawus.com Growing in Indiana to meet your company’s legal needs STEPHEN STITLE | MARTHA LEHMAN | LARRY TOMLIN | ANDREW PODGORNY | BRANDT HARDY MARK WENZEL | DEBRA MASTRIAN | JOHN TANSELLE
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