And the Beat Goes On… DOL Publishes Second and Third Round of FAQs on FFCRA Answering Burning Employer QuestionsThe DOL is clearly plugged in to the issues and questions employers are running into as everyone plans to give notice of and grant paid leave under the Families First Coronavirus Response Act (FFCRA). The DOL’s first round of FAQs (published on March 24, 2020) focused on how to determine if an employer meets the “fewer than 500 employees” threshold and leave calculations.  The latest rounds of FAQs (published on March 26, 2020, and March 28, 2020) address the practical issues involved with administering leave under the FFCRA IRL (in real life). We are highlighting some of the FAQs that seem to be most pertinent but here is the complete list of FAQs.

Can You Require Documentation? (FAQs # 15-16)

Many of you have very reasonably asked whether you can require employees requesting FFCRA leave to submit documentation supporting the need for leave. The DOL says yes you can, and you should if you intend to claim the tax credit. If an employee takes paid leave under the Emergency Paid Sick Leave Act (EPSL) or under the Emergency Family and Medical Leave Expansion Act (EFMLA), you must require employees to provide appropriate documentation including the qualifying reason for leave, statement that the employee is unable to work or telework for that reason, and the dates for which leave is requested.

Appropriate documentation includes:

  • A copy of the federal, state or local quarantine or isolation order related to COVID-19.
  • Written documentation by a healthcare provider advising the employee to self-quarantine due to concerns related to COVID-19.
  • A notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider to show the school or place of care is closed due to COVID-19.

You should retain documentation provided by employees in your records if you intend to claim a tax credit under the FFCRA.

What Does “Telework” Mean? (FAQs # 17-19)

Telework is work performed from home or at a location other than an employee’s normal workplace. The FAQs explain that an employee is unable to “work or telework” if the employer has work and one of the COVID-19 qualifying reasons prevents the employee from being able to perform that work, either under normal circumstances at the normal worksite or under alternative circumstances at an alternative location. If an employer allows teleworking and an employee is unable to perform teleworking tasks or work the required teleworking hours because of one of the qualifying reasons for EPSL or because the employee needs to care for a child whose school or place of care is closed because of COVID-19 related reasons, the employee is entitled to take paid sick leave.  The DOL seems to indicate that whether an employee can telework is a joint decision to be made between the employee and the employer.

Can Employees Take Intermittent Leave? (FAQs # 20-22)

The DOL provides guidance for intermittent leave under two distinct situations: (1) employees who are teleworking; and (2) employees who are working onsite.

Generally, employees must take EPSL leave in full-day increments to accomplish the intent of FFCRA to provide paid sick leave as necessary to stop the spread of the virus. The suggestion is that if you are sick or are caring for someone who is sick, you cannot work.

Employees Working at the Usual Worksite:

For employees working at their usual worksite who qualify for paid sick leave for any reason other than to care for a child whose school or daycare is closed, they must take paid sick leave continuously and in full day increments until paid leave is exhausted or the qualifying reason ends.

So, if an employee working at the usual worksite is taking leave for any of the following reasons, they cannot take it intermittently:

  1. Employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. Employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. Employee is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; or
  5. Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

An employee working at their usual worksite may be able to take EFMLA leave intermittently. Recall EFMLA leave is only available to care for a child whose school or daycare is closed. For this leave, you have to agree to allow intermittent leave, and you and your employee need to agree on a schedule.

Teleworking Employees:

If an employee is teleworking, he or she can take intermittent leave in increments of less than a full day if you allow it.

If you permit exempt teleworkers to take intermittent leave be careful to closely track when exempt employees are working and when they are using EPSL or EFMLA. You must also ensure exempt employees do not drop below a weekly salary threshold of $684. So, you can grant them the paid FFCRA leave but you may still need to supplement the weekly pay to be sure their salary is not reduced. You can claim only the amount of the paid FFCRA benefit in the tax credit.

Closed Worksites, Furloughs and Reduced Hours (FAQs # 23-31)

The DOL unequivocally states that if an employee’s worksite closes either before or after April 1, 2020, regardless of whether the employer does so for lack of business or because it is required to close pursuant to a federal, state or local directive, employees cannot take either EPSL or EFMLA leave. Employees who are sent home and stop receiving pay because the employer does not have work for them can apply for unemployment insurance benefits. As we have noted before, many states are relaxing unemployment benefits eligibility and applications, so check your state’s requirements.

Even if an employer closes a worksite while an employee is on EPSL or EFMLA leave, you are only required to pay for leave used before the closure. As of the closure date, the employee is no longer entitled to EPSL or EFMLA pay but may be entitled to unemployment insurance benefits.

The DOL states, “If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work.”

If an employer remains open but places employees on furlough due to lack of business, furloughed employees are not eligible for paid leave under either EPSL or EFMLA. Also, if an employer reduces an employee’s work hours because it does not have enough work, the employee may not use EPSL or EFMLA for the hours they are no longer scheduled to work because they are not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19. In such a case, the employee may qualify for partial unemployment benefits.

Employees who receive paid leave under EPSL or EFMLA are not eligible for unemployment insurance benefits. No double dipping.

Can Employees Supplement FFCRA Paid Leave with PTO? (FAQs # 32-34)

An employee who wants to supplement any lost pay they receive under either EPSL or EFMLA, with preexisting leave entitlements, may do so only if the employer agrees.

However, you cannot require an employee to supplement EPSL or EFMLA pay with preexisting leave.

Even if both you and your employee agree to supplement, you cannot claim or receive a tax credit for the supplemental amounts – only up to the caps.

Multiemployer Collective Bargaining Agreements (FAQs #35-37)

Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provide that, consistent with its bargaining obligations and collective bargaining agreement, an employer may satisfy its legal obligations under both acts by making appropriate contributions to such a fund, plan, or other program based on the paid leave owed to each employee or by other means, provided they are consistent with its bargaining obligations and collective bargaining agreement.

Exceptions for Healthcare Providers and Emergency Responders (FAQs # 56-57)

FAQ #36 notes that if you employ a healthcare provider (HCP) or an emergency responder, “you are not required to pay such employee paid sick leave or expanded family and medical leave on a case-by-case basis.” In providing guidance on who is a “healthcare provider” who can be denied paid leave, FAQ #56 defines it much more broadly than the traditional FMLA. Instead, for the exception an HCP is:

“anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”

Moreover, the definition explicitly includes “any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.” Employees providing medical services, producing medical products, or who are “otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments” are also covered (and thus potentially excluded from FFCRA leave).

An emergency responder is also broadly defined to include those who are “necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19.” It also explicitly includes the military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, 911 operators, and others.

If you need an HCP or emergency responder to work, you can deny them any paid FFCRA leave. To minimize the spread of COVID-19, the DOL encourages employers to use this exception judiciously.

What About the Small Business Exemption? (FAQ #58-59)

Many small companies who have never been FMLA-covered employers have been looking for guidance on the small business exemption. The latest guidance suggests that this is not an “all or nothing” exemption and must be assessed based on the employee who is requesting the leave.  Specifically, you are exempt from mandated paid leave only if:

  1. You employ fewer than 50 employees;
  2. Your employee requests leave because a child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  3. An authorized officer of your business has determined that (a) providing paid leave would result in your “business’s expenses and financial obligations exceeding available business revenues” and cause you to cease operating at a minimal capacity; (b) the absence of the employee requesting the leave would “entail a substantial risk to the financial health or operational capabilities” of your business because of the employee’s specialized skills, knowledge of the business, or responsibilities; or (c) you will not be able to find someone who can perform the employee’s job and the labor or services “are needed for the small business to operate at a minimal capacity.”

Take note that small businesses are not exempt from providing paid EPSL for reasons other than taking care of a child whose school or daycare is closed. Additionally, the original FAQ #4 noted that you are not to send any materials to the DOL seeking this exemption. Instead, you will make the decision, and it will be challenged later (so keep good records to support it).

Conclusion (for Now)

In summary, the DOL answered some of our burning questions, and we now know that:

  • You can and should require employees to submit appropriate documentation to verify the need for EPSL and EFMLA leave;
  • If you agree to it, teleworking employees can take intermittent leave in increments of less than a day for any of the EPSL or EFMLA qualifying reasons;
  • Employees working at the usual worksite who qualify for EPSL leave for any reason other than child care, must take the leave continuously in full day increments;
  • If you agree to it, employees on extended EFMLA leave may take intermittent leave either for telework or onsite work;
  • Employees on furlough or temporary layoff are not eligible for EPSL or EFMLA leave regardless of whether the furlough or temporary layoff occurred before or after April 1, 2020;
  • Employees are not entitled to supplement EPSL or EFMLA pay with preexisting PTO or vacation unless you agree, and if you do agree, you will not receive a tax credit for the supplemental amounts;
  • If you employ healthcare providers (broadly defined to include anyone who works for a healthcare provider and more), you can deny requested leave; and
  • You make the decision about the small business exemption on a case-by-case basis and defend it later

It appears the DOL is working as hard as we all are at trying to parse out the requirements of the FFCRA, and the newest FAQs provide welcome clarification for employers.

Is the Wait Finally Over? Senate Passes Massive COVID-19 Relief Bill — How Does It Help Employers?Late Wednesday night, the Senate passed a sweeping coronavirus economic rescue package that would pump $2 trillion into America’s economy. The House is expected to take up the bill as early as Friday, March 27.

The final version of the Senate bill includes, among other things, provisions that will send checks directly to households, invest $150 billion into the nation’s healthcare system, and invest another $150 billion in state and local governments to shore up coronavirus relief efforts.

Employers should pay close attention to Division A of the bill, which includes assistance for workers, families, and businesses. Title II of Division A specifically aims to keep workers employed, keep businesses afloat, and support those who file for unemployment as a result of the current pandemic. Below, we break down the highlights of the legislation that pertain specifically to employers and employees.

Unemployment Benefits

The bill would create a temporary “Pandemic Unemployment Assistance” program that would operate through December 31, 2020. The program would provide payments to those who are not traditionally eligible for unemployment. For example, people who are self-employed, or are classified as independent contractors, who are unable to work as a direct result of the pandemic would now qualify for benefits.

The bill also expands on current unemployment benefits by providing an additional $600 per week to unemployment recipients, on top of state unemployment payments. States must opt-in to this program to qualify for the additional funds. The federal program would pay recipients in qualified states additional funds through, at the latest, July 31, 2020.

Short-Time Compensation

Another section of the bill provides funding for “short-time compensation” programs. This program is designed to help employers who, instead of laying off workers, reduce employee hours. Under the program, employees whose hours have been reduced would receive a prorated unemployment benefit. This program would be administered by the states and would only be available where the state has opted into an agreement with the federal government. Employers would be required to pay the state 50% of the costs of the short-time compensation paid to employees.

Tax Credits

The bill provides a payroll tax credit for 50% of wages paid by employers to employees during the pandemic. This credit is available to employers whose: (1) operations are fully or partially suspended due to a COVID-19 shutdown order; or (2) gross receipts declined by more than 50% as compared to the same quarter in 2019.

The credit would apply to the first $10,000 of compensation — including health benefits — paid to an employee and would be available for wages paid or incurred from March 13, 2020, through December 31, 2020. Eligible wages are those paid to employees when they are not providing services due to the pandemic (for businesses with over 100 full-time employees) or all employee wages, regardless of the COVID-19 impact (for businesses with 100 or fewer full-time employees).

The bill also allows employers to receive an advance tax credit from the Treasury rather than being reimbursed on the back end.

Delay of Payroll Taxes

This provision allows employers to defer payment of federal Social Security taxes, paying half by December 31, 2021, and the other half by December 31, 2022.

Paid Leave

The bill creates a cap on paid leave, and states employers will not be required to pay more than $200 per day and $10,000 in aggregate for each employee. It also creates a cap on emergency paid sick leave, stating that an employer will not be required to pay more than $511 per day and $5,110 in aggregate for sick leave or more than $200 a day and $2,000 in aggregate to care for a quarantined individual or child for each employee.

The bill also allows for an employee who was laid off any time after March 1, 2020, to access paid family and medical leave if they are then rehired by the same employer.

So What Does the Future Hold?

While the future of the bill is uncertain, many of these provisions would provide welcome support to employers and employees during this unprecedented moment in time.

DOL Issues FFCRA Guidance and Poster with a New April 1 Effective DateThe Department of Labor now has issued guidance, questions and answers, and a poster for  those employers covered by the recently enacted Families First Coronavirus Response Act (FFCRA), which we have summarized here.

Guidance and FAQ Highlights

Notably, the FAQ states that the effective date of the FFCRA is April 1 and not April 2. (The statute’s actual language is “not later than” 15 days from enactment, which calculates to April 2).

DOL’s guidance mentions that covered employers qualify for reimbursement through tax credits for “all qualifying wages paid under the FFCRA . . . up to the appropriate per diem and aggregate payment caps.” It goes on to note that the credits extend to “amounts paid or incurred to maintain health insurance coverage.”

Major takeaways from the FAQ include:

  • The paid leave provisions “apply to leave taken between April 1, 2020 and December 31, 2020” and this leave is not retroactive. This may indicate that an employer who grants this leave before April 1 may not be able to take advantage of the tax credit.
  • When and how the coverage threshold of 500 or fewer employees is calculated.
  • How to calculate paid sick leave.

Little guidance is provided for the small business (under 50 employees) exception. Instead, DOL instructs these small employers to maintain records as to why they cannot meet the FFCRA’s requirements and look for additional regulations to come.

New Posters

DOL also issued its workplace poster for the FFCRA. All employers with fewer than 500 employees who are covered by the new law should put this up, even if you have fewer than 50 employees and plan to seek an exemption. The poster FAQ page explains how the poster must be posted. Notably:

  • You must put the poster “in a conspicuous place” on your premises. Consistent with other federal posting requirements, if employees don’t come to one central place, you need to post it in multiple places.
  • You may satisfy this posting requirement by emailing or direct mailing the notice to employees or posting this notice on an employee information internal or external website.
  • You do not have to post it in multiple languages yet. DOL is working on translating the poster (so this could change).
  • You will need to keep the posters up through the end of this year.

For easy reference, here are the links: