The Families First Coronavirus Response Act creates new paid sick leave and expanded family and medical leave benefits for some employees. These expanded leave requirements apply to all public employers and to private employers with fewer than 500 employees, including charter schools. They took effect April 1, 2020, and apply through Dec. 31, 2020.
Charter schools may be subject to additional state or local paid sick leave or family and medical leave requirements not addressed in this document. Charter school leaders who have questions about how these provisions may apply to them or intersect with other state and local laws should consult with a human resources professional or their attorney.
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Employers are required to provide up to 80 hours or 10 days of paid sick leave to employees. This paid sick leave can be used by employees who are unable to work or telework for the following reasons:
Employees who are unable to work or telework because they are themselves quarantined, self-quarantining, or experiencing COVID-19 symptoms are entitled to full pay (up to limits discussed below); employees who are caring for others, including children, can receive two-thirds of regular pay (up to limits discussed below).
This expanded paid sick leave took effect April 1, and is on top of any sick leave to which employees are already entitled under their employers’ previously existing policies, or other federal, state, or local laws.
In addition to emergency paid sick leave, employees may qualify for up to 12 weeks of expanded emergency family and medical leave, if they are unable to work or telework in order to care for a child whose school or child care is closed due to the coronavirus. The first two weeks of this leave are unpaid, but employees may elect to use their emergency paid sick leave during this time. The remaining 10 weeks are paid at two-thirds of regular pay (up to limits discussed below). If any employee was already covered by federal FMLA provisions, this Emergency Family and Medical Leave Expansion does not increase the total amount of FMLA leave they are entitled to above 12 weeks in a 12-month period.
The CARES Act limits the total amount an employer can be required to pay employees under Emergency Paid Sick Leave and Emergency Family and Medical Leave Expansion:
Under regulations issued by the Department of Labor on April 6, 2020, employers of health care providers and emergency responders may elect to exempt such employees from emergency leave. In addition, small employers with fewer than 50 employees may deny emergency paid sick leave or extended family and medical leave to employees who would otherwise be eligible for it if the employee’s absence would cause the employer’s expenses and obligations to exceed available business revenue, pose a substantial risk to the business’s ability to continue to operate, or prevent the employer from operating at minimum capacity. These exemption criteria are unlikely to apply to most charter school employees. Charter schools seeking to exempt employees from paid sick leave and emergency family and medical leave, or to deny a leave request from an employee who would otherwise be eligible, should consult with an attorney or human resources professional.
The Families First Coronavirus Response Act also provides refundable tax credits against federal employment taxes for most employers who have fewer than 500 employees and pay sick leave or family leave wages to employees as a result of the law’s new requirements. This tax credit is intended to cover 100% of the costs of providing required paid sick leave and family leave (including wages, qualified health plan contributions, and the employer’s share of Medicare taxes), even if those costs exceed the employer’s share of Social Security tax liability, subject to limits imposed by the CARES Act.
Tax-exempt organizations and businesses that have fewer than 500 employees are eligible for the credit, but government entities are not. Because state law treats charter schools’ nongovernmental status differently, it is unclear whether all charter schools are eligible for these credits. Charter schools that wish to take advantage of this tax credit should consult with their accountants and/or attorneys.
Eligible employers can claim the credit by reporting their total qualified leave wages on their quarterly federal employment tax returns. In anticipation of this credit, employers can fund qualified wages by accessing federal employment taxes they are required to deposit with the IRS, and some may be able to request an advance from the IRS. These tax credits are refundable, meaning an employer can receive the full benefit even if it exceeds the employer’s portion of Social Security taxes. The IRS website provides additional information and forms needed to claim the credit and request an advance, at the links below. Charter schools should communicate with their payroll processor if they use one to determine how they should record this information so that it is reported and refunded correctly.
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