The credit just became permanent — and easier to qualify for
If your business offers (or has considered offering) paid family or medical leave, a federal tax credit that used to come with an expiration date just became a permanent part of the tax code — and the IRS made it easier to qualify for at the same time.
On August 5, 2026, the Treasury Department and the IRS issued Notice 2026-28, providing guidance on the expanded Section 45S employer credit for paid family and medical leave. Here's what changed, who qualifies, and how the credit is calculated.
What changed
Section 45S — the employer credit for paid family and medical leave — has been on the books since 2017, but it was never permanent. Under the prior rules, the credit was set to expire for tax years beginning on or after January 1, 2026, unless Congress acted again. The Working Families Tax Cuts legislation made it permanent, and Notice 2026-28 is the IRS's guidance on how the expanded version works starting with tax years beginning after December 31, 2025.
Three things changed:
- It's permanent now. No more expiration cliff to plan around.
- More employees qualify. Workers now need only six months of service with your business to count toward the credit, down from a full year under the old rules. Part-time employees working at least 20 hours a week are newly eligible — a real expansion from the prior structure.
- A new way to claim it. Employers can now claim the credit based on premiums paid for a paid-family-and-medical-leave insurance policy, not just wages paid directly to an employee while they're out. That matters if you buy a PFML policy through a carrier rather than self-funding leave pay.
One nuance worth flagging: if your state or city already requires paid leave, that mandated leave can count toward whether your business qualifies for the federal credit — but it doesn't count toward how the credit itself is calculated. Those are separate questions, per the IRS's own release.
How the credit is calculated
The underlying math hasn't changed — Notice 2026-28 expands who qualifies and how you can claim it, not the credit formula itself. Per the IRS's Section 45S FAQ guidance:
- The credit applies to up to 12 weeks of family or medical leave per qualifying employee, per taxable year.
- Your business must pay at least 50% of the employee's normal wages during that leave to qualify at all.
- The credit rate starts at 12.5% of qualifying wages at the 50% wage-replacement floor, and climbs 0.25 percentage points for every additional percentage point of wage replacement you provide — up to a 25% credit if you replace 100% of normal wages.
For example: a business that pays an employee 100% of their normal wages during 12 weeks of qualifying leave could claim a credit equal to roughly a quarter of those wages. A business that pays the 50% minimum would claim roughly an eighth. This is illustrative math based on the IRS's published percentage range — your actual credit depends on your specific written leave policy, employee wages, and how you file, so it's worth working through with a tax professional or payroll provider rather than estimating from a blog post.
Who this actually affects
This isn't a credit for every business. To claim it, you generally need:
- A written leave policy offering paid family and medical leave that meets the wage-replacement minimum described above.
- Employees who now meet the newly-lowered eligibility bar — six months of service, or 20+ hours a week if part-time.
- Documentation to support the claim, filed using IRS Form 8994, the Employer Credit for Paid Family and Medical Leave.
If you're a small business with a handful of long-tenured employees and no formal paid-leave policy, this is worth a second look now that permanence removes the "is this going away next year" question that made some employers hesitant to build a policy around it in the first place. If you already offer paid leave informally, formalizing it in writing may be what stands between you and a credit you're not currently claiming.
Treasury and the IRS have said proposed regulations with more implementation detail are still coming. Until then, employers can rely on the guidance in Notice 2026-28 for filing.
What to do next
If paid leave is already part of how you run your business, this is worth flagging to whoever handles your payroll or files your business taxes — the eligibility changes alone could bring employees into scope who didn't qualify last year. If you don't currently offer paid leave but have been weighing it, the credit is now a permanent part of the calculation instead of a temporary sweetener that might disappear.
Either way, a formal written leave policy is the starting point — the credit doesn't apply to informal, unwritten arrangements. Talk to a tax professional about whether Form 8994 makes sense for your specific payroll and leave structure this filing year.
This is one of several 2026 tax changes reshaping the numbers for small business owners — alongside changes to Section 179 and bonus depreciation and the Section 174A research-expense deduction. If a change like this frees up cash flow, or you're weighing how to fund a new benefits policy while your tax picture shifts, start an application — the platform evaluates which financing options fit your business profile.
ClearValue Lending is a small business funding platform, not a tax advisor. This article is educational and general in nature — talk to a licensed tax professional about how Section 45S applies to your specific business.