FMLA

4 Things Every Employer Should Know About FMLA

All South Carolina employers who have at least 50 employees for at least 20 weeks this year or last year have to follow the federal Family Leave and Medical Leave Act (FMLA). Due to the COVID-19 pandemic, some employers are eligible for financial assistance from the federal government if they pay wages to employees for extra sick, medical, or family leave.

The COVID-related legislation is temporary, lengthy, and complex. A South Carolina business attorney can explain your obligations under the standard federal FMLA and the laws that expand the FMLA for COVID-related absences from work. Here are four things every employer should know about FMLA:

Pre-COVID FMLA Provisions

These are the general provisions of the federal FMLA as it stood before the COVID-19 pandemic. When the temporary COVID-related legislation expires, these regulations will control.

  • An employee of a qualified employer must work for the company for at least one year at a location that has at least 50 employees within a 75-mile radius and log at least 1,250 hours of work time within the previous year to be eligible for FMLA benefits.
  • FMLA benefits apply to several different situations, such as a worker who just gave birth or adopted a child, is recovering from a significant illness, is a caregiver for a family member with a severe medical condition, or certain military-related issues.
  • Qualifying military-related situations can provide up to 26 weeks of leave in a 12-month period, but there are restrictions.
  • Qualifying non-military-related situations can provide up to 12 weeks of leave in a 12-month period.
  • FMLA standard leave is unpaid. 
  • The worker can maintain the employer-provided health insurance during leave but will have to pay their usual contribution for the coverage. 
  • Usually, the worker has the right to return to the same position or a similar one when returning from leave.

This is merely an overview of the standard FMLA as it existed before the COVID-19 pandemic. There are many restrictions, limitations, and exceptions within the legislation.

No South Carolina Law That Provides Additional Benefits 

The Family and Medical Leave Act (FMLA) provides some leave benefits for employees in specific situations. Some states have their own legislation that expands those benefits beyond federal law, but South Carolina does not have such legislation. 

Which Employers Qualify Under the FFCRA

The Families First Coronavirus Response Act (FFCRA) applies to employers with fewer than 500 employees who paid “qualified sick leave wages” and/or “qualified family leave wages under the Emergency Paid Sick Leave Act (EPSLA) and/or Emergency Family and Medical Leave Act (Expanded FMLA.  These companies can receive funding to help cover the cost of the expanded sick, family, and medical leave for COVID-19 related absences from work. The absence could be due to any of these situations:

  • The employee was unable to work or telework because the employee was sick with or quarantined due to COVID-19.
  • The employee was a caregiver for a family member with COVID-19 or for a child whose school or childcare location was closed, or the regular caregiver was unavailable due to the pandemic.

The American Rescue Plan Act of 2021 (ARP) offers small and midsize employers and some governmental entities refundable tax credits for employers who pay sick leave or family and medical leave for COVID-related illness, caregiving of a family member, or for an employee to receive the COVID-19 vaccine and recover from those vaccinations.

No South Carolina Law That Provides Additional Benefits 

The Family and Medical Leave Act (FMLA) provides some leave benefits for employees in specific situations. Some states have their own legislation that expands those benefits beyond federal law, but South Carolina does not have such legislation. 

How COVID-19 Changed the FMLA Temporarily

The federal government increased the required amount of paid sick leave as well as family and medical leave in the Families First Coronavirus Response Act (FFCRA). That expanded coverage applies to COVID-related leave taken between April 1, 2020, and December 31, 2020. The FFCRA offers tax credits for up to two weeks (up to 80 hours) of qualified sick leave pay and up to ten weeks of qualified family leave pay.

The FFCRA has two parts:

  • The Emergency Paid Sick Leave Act (EPSLA) – that covers up to 80 hours of paid sick time when a worker cannot work due to COVID-19, and
  • The Emergency Family and Medical Leave Act (Expanded FMLA) – that increases the amount of paid leave for family and medical leave.

Some self-employed individuals can receive benefits under the FFCRA.

If you paid sick, family, or medical leave benefits to employees related to COVID-19 between January 1, 2021, and September 30, 2021, you might be eligible for a tax credit under the American Rescue Plan Act of 2021 (ARP). The IRS has online guidance for small and mid-sized businesses that find themselves in this situation. 

Unless the federal government passes additional legislation, the expanded paid leave coverage will expire after September 30, 2021, and employers will return to the previous FMLA terms. A South Carolina business attorney can provide guidance and answer your questions about the FMLA.