March 23, 2020 10:44am
Unpacking the Families First Coronavirus Response Act with Integrity HR
Guidelines as of 3/20/20
Emergency Family & Medical Leave Expansion
WHO DOES THIS APPLY TO?
Applies to employers with fewer than 500 employees.
WHO’S ELIGIBLE FOR THIS?
Employees are not required to meet the standard eligibility requirements under the Family and Medical Leave Act. Any employee who has been employed with the company for at least 30 calendar days is considered eligible. Employers may be able exclude employees who are health care providers or emergency responders.
WHO CAN TAKE THIS EMERGENCY LEAVE?
Eligible employees may take up to 12 weeks of job protected leave due to employee being unable to work (not be offered telework options), who is required to care for their son or daughter (under 18 years of age) where the place of care has been closed, or the childcare provider is unavailable.
HOW CAN EMPLOYEES TAKE THIS LEAVE?
Employees should provide written notice to employer when at all possible.
WHAT’S AN EMPLOYERS OBLIGATION TO PAY THE EMPLOYEE WHILE OUT?
- Emergency FMLA is available when childcare or schools are closed under the Families First Coronavirus Response Act (FFCRA): o Weeks 1 & 2 are unpaid, unless the employee elects to substitute Emergency Sick Time (at 2/3 of their pay for 10 days capped at $200 per day, or any available PTO/Accrued Sick/Vacation sponsored by the employer); AND
- Up to an additional 10 weeks (weeks 3-12), employees would be paid at 2/3 pay up to $200 per day.
- If the employee had a varying schedule before the leave, use the average number of hours the employee was scheduled over the last six months, for calculating pay. If no period exists use a reasonable expectation.
- Include leave time away in the calculation of average hours. Note: Be prepared- some employees may elect their employer sponsored PTO, sick or vacation time, since this would be paid at 100% versus the 2/3 pay provided by the FFCRA.
DOES AN EMPLOYER NEED TO HOLD A JOB? JOB REINSTATEMENT
- The same reinstatement provisions apply as under traditional FMLA; the employer must make reasonable attempt to return employee to work for up to a year following leave.
- Some exceptions apply to job reinstatement for employers with less than 25 employees if certain conditions are met:
- The job no longer exists because of changes affecting employment caused by an economic downturn or other operating conditions that affect employment caused by a public health emergency, the employer makes reasonable efforts to return the employee to an equivalent position and the employer makes efforts to contact a displaced employee if anything comes up within a year of when they would have returned to work.
- Additional exemptions may exist for employers with fewer than 50 employees, where the viability of the business is put at risk.
At this time, it is unknown if specific documentation will be required (similar to traditional FMLA). We will keep you advised as new information arises.
Emergency Paid Sick Leave
WHO DOES THIS APPLY TO?
Applies to employers, including government employers, with fewer than 500 employees. The Act reserves the right for the Secretary of Labor to exclude certain health care providers and first responders and to exempt certain small businesses with fewer than 50 employees if business viability is in jeopardy. (We expect this may be further defined in the future.)
WHO IS ELIGIBLE?
Paid sick time is immediately available for everyone and may be taken for any of the following 6 reasons.
- The employee is subject to federal, state or local quarantine or isolation order related to COVID-19
- The employee has been advised by a health care provider to self-quarantine due to a COVID-19 concern.
- The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis.
Note: Tax credit for Paid Sick Leave cannot exceed $511 per day for a maximum of 10 days, for the three reasons listed above.
- The employee is caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns.
- The employee is caring for a son or daughter (under the age of 18) when the school or childcare provider has closed or ceased operations due to COVID-19 precautions.
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health. Note: Paid sick time may be paid at two-thirds of the employee’s regular rate if taken for the items 4-6 above and tax credit cannot exceed $200 per day for up to 10 days.
HOW MUCH TO PAY THEM? HOW LONG?
Full-time employees are entitled to up to two weeks (80 hours) and part-time employees are entitled to the equal number of hours that they work on average over a two-week period. Note: Paid sick time shall not carry over from one year to the next and shall immediately cease beginning with the employee’s next schedule work shift.
- Employers may not require employee to find a “replacement employee” to cover the hours during which the employee is using paid sick time.
- Local sick or paid sick leave requirements may still be in force in given cities, states or communities.
Employers will need to post the notice prepared and approved by the Secretary of Labor, when it is available.
It is against the law for any employer to discharge, discipline or in any other manner discriminate against any employee who takes leave in accordance with this Act or has filed any complaint or instituted or cause to be instituted any proceeding under or related to this Act.
HOW YOU BENEFIT AS AN EMPLOYER: PAYROLL TAX CREDIT |HEALTH INSURANCE
Employer credits apply to both the Emergency FMLA expansion and the Emergency Sick Leave. We expect dollar for dollar credit for sick leave and paid Emergency FMLA wages paid. Employer portion of the health insurance premiums is to be credited by the days covered by E-FMLA and emergency sick leave.
1. WHO MUST COMPLY WITH THE ACT?
Employers with fewer than 500 employees. The company (not just the location) must have fewer than 500 employees to be required to comply with E-FMLA and the Emergency Paid Leave. Employers larger than 500 employees are not required, nor eligible to participate in this program. Certain Health Care Providers and Emergency Responders may be excluded.
2. WHAT EMPLOYEES ARE COVERED BY THE ACT?
Both full time and part time employees. Employees must have completed 30 calendars days of work for E-FMLA. Emergency Family & Medical Leave (“E-FMLA”)
3. HOW DO EMPLOYEES GO ABOUT TAKING LEAVE IF THEY NEED IT?
Eligible employees (those working at least 30 calendar days with the Company) may request up to 12 weeks of job protected leave when it is due to COVID-19. The purpose for this is to care for their child (ren) under the age of 18 due to school closings/daycare closings or when an employee cannot telework. The employer is required to make reasonable attempts to return an employee to work for up to a year following the leave. More details follow below.
4. IS THE PAID LEAVE PERMANENT?
No. It’s meant as a response to coronavirus and expires December 31, 2020.
5. DO STEPCHILDREN QUALIFY UNDER THE EMERGENCY FMLA EXPANSION FOR LACK OF CHILDCARE?
The Act states son or daughter, under the age of 18 years old and does not distinguish between biological or step relations.
6. I HAVE AN EMPLOYEE THAT HAS ALREADY TAKEN 12 WEEKS OF FMLA LEAVE THIS YEAR, ARE THEY ELIGIBLE FOR AN ADDITIONAL 12 WEEKS OF FMLA LEAVE TO STAY HOME THEIR CHILDREN?
Not as we understand it. The Act does not expand an eligible employee’s FMLA leave entitlement to greater than 12 workweeks during any 12-month period. Accordingly, an employee that has otherwise exhausted FMLA leave during the 12-month period is not entitled to additional 12 weeks of leave under EFMLA. That said, as we understand it, this employee would still be eligible for ten days of Emergency Paid Sick Leave under the Act, as well as any other available leave under state and local laws or company policies.
7. IS LEAVE JOB PROTECTED?
Yes, the Act offers the same job protection as the traditional Family Medical Leave Act. The employer must make reasonable efforts to restore the employee to the same or an equivalent position, and if the reasonable efforts fail, the employer must make efforts to contact the employee and reinstate the employee if an equivalent position becomes available within a one-year period beginning on the earlier of (a) the date on which the qualifying need related to a public health emergency concludes, or (b) the date that is 12 weeks after the date the employee’s leave started. However, the E-FMLA’s requirement that an employee be restored to the same or equivalent position after leave does not apply to an employer with fewer than 25 employees if the employee’s position no longer exists due to economic conditions or other changes in the employer’s operations that affect employment and are caused by the public health crisis during the period of leave.
8. WHO PAYS FOR THE E-FMLA?
The employer. For the first 10 days, the time away may be PTO, vacation, sick time or unpaid. The employee may also elect to use the 10 days of emergency paid sick leave. After the first 10 days of eligible emergency family leave (E-FMLA), the employer will pay the employee two thirds of the employee’s regular rate of pay for the number of hours they would normally be scheduled to work, capped at $200/day and $10,000 in total.
We understand employers will receive a dollar for dollar credit (up to the allowable limits) for wages paid against the employer’s portion of Social Security taxes. Employers will also receive credits for health care premium costs. .Please seek guidance from your accounting professional relative to taking advantage of all appropriate tax credits resulting from COVID-19.
9. WHAT NOTICE MUST AN EMPLOYEE PROVIDE FOR LEAVE?
The E-FMLA provisions require employees to provide the employer with “notice of leave as is practicable.” So, as we understand it, once an employee provides the notice, they have the 10-day period to use Company provided benefits (PTO, vacation, or sick time) if available, utilize the Emergency Paid Sick Leave or take unpaid time off if they choose.
10. IS THERE AN AGE LIMIT ON CHILDREN OUT OF SCHOOL FOR QUALIFICATION?
18 years of age.
11. WHAT WOULD BE CONSIDERED A LOSS OF CHILDCARE?
A local, state, or federal level mandate to close elementary, secondary schools, or daycare closures.
Emergency Paid Sick Leave
12. WHAT IS THE DURATION OF THE EMERGENCY PAID SICK LEAVE?
Full time employees are entitled to 80 hours of paid sick leave.
Part time employees are entitled to sick leave equal to the number of hours worked on average over a typical two-week period.
13. CAN I ASK AN EMPLOYEE TO WORK REMOTELY RATHER THAN BE OUT ON EMERGENCY PAID SICK LEAVE?
As we understand it, a conversation can be held with the employee to identify scheduling options for working remotely.
14. DOES THE EMERGENCY PAID SICK LEAVE PORTION COVER SOMEONE THAT IS CONCERNED ABOUT CONTRACTING THE DISEASE?
Only if there is a documented autoimmune disorder or condition where a physician recommends quarantine or self-isolation.
15. DO EMPLOYERS HAVE TO CONTINUE EMPLOYEE BENEFIT COVERAGE IF THEY ARE OUT ON EMERGENCY PAID SICK LEAVE?
Yes, the employee would still be considered benefit eligible. This would also be an expense that can be claimed as a tax credit.
16. IS CARRYOVER REQUIRED FOR UNUSED EMERGENCY PAID SICK LEAVE?
The emergency paid sick leave provisions state that unused paid sick leave does not carry over from one year to the next. So, for example, if an employee didn’t use it this year, but wants to use it next year, the program doesn’t carry over. Right now, the program is in effect until 12/31/2020. We are uncertain about any extensions at this time.
17. CAN AN EMPLOYEE WHO TAKES EMERGENCY PAID SICK LEAVE BE REQUIRED TO FIND A REPLACEMENT WORKER?
The paid sick leave provisions state that an employer may not require an employee to find a replacement worker when the employee takes such leave.
18. MUST AN EMPLOYER PAY OUT UNUSED EMERGENCY PAID SICK LEAVE IF THE EMPLOYEE SEPARATES FROM ITS EMPLOYMENT?
An employer is not required to pay unused paid sick leave if an employee separates from employment.
19. ARE EMPLOYERS WITH 500 OR MORE EMPLOYEES OBLIGATED TO PROVIDE EMERGENCY PAID SICK OR EMERGENCY FMLA BENEFITS?
We don’t believe they have such obligation under this Act. However, they still must comply with obligations under state or local paid sick leave or paid family and medical leave laws and administer sick or paid time off or paid leave provided under company policies or collective bargaining agreements.
20. MY COMPANY IS CURRENTLY EXEMPT FROM THIS LAW BECAUSE WE HAVE OVER 500 EMPLOYEES. WE ARE ANTICIPATING A LAYOFF AND THE COMPANY WILL HAVE LESS THAN 500 EMPLOYEES AFTER THE LAYOFF. DO I NOW NEED TO COMPLY WITH THIS LAW?
It depends. If the company maintained more than 500 employees on the payroll during 20 or more calendar workweeks in either the current or preceding calendar year, the employer will not be required to comply with this law.
21. THE ACT PROVIDES POSSIBLE EXEMPTIONS FOR SMALLER EMPLOYERS IF COMPLIANCE WITH THE ACT WOULD CONSTITUTE AN ISSUE FOR THE COMPANY’S VIABILITY. WHAT WOULD CONSTITUTE AN ISSUE FOR THE COMPANY’S VIABILITY FOR EMPLOYERS WITH LESS THAN 50 EMPLOYEES?
There is not a clear definition at this time. This will be up to the Department of Labor and current administration to interpret.
22. WHEN WILL THESE CHANGES GO INTO EFFECT?
It appears to be April 2, 2020 for both the Emergency Paid Sick Leave and Emergency Expansion of FMLA. (If this changes, we will let you know.)
23. IF A COMPANY DECIDES TO SHUT DOWN TEMPORARILY, WILL EMERGENCY PAID SICK LEAVE STILL BE REQUIRED?
It depends – if the Company shuts down prior to April 2. If the Company shuts down after April 2, with fewer than 50 employees, the Company may be able to apply for an exemption. With a shut down, the employees would be considered eligible for Unemployment Benefits. Benefit providers may allow for additional exceptions in the near future for employers to continue paying for benefit coverage.
These represent the most frequently asked questions.
1. CAN THE VIRUS SPREAD FROM CONTACT WITH INFECTED SURFACES OR OBJECTS?
This has currently not been confirmed to be the main way to spread the virus, but it may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes. Best Practice: Implement a cleaning strategy to wipe down high contact areas at least every 2 hours.
2. CAN WE ASK AN EMPLOYEE TO STAY HOME OR LEAVE WORK IF THEY EXHIBIT SYMPTOMS OF THE COVID-19 CORONAVIRUS OR THE FLU?
Yes, you are permitted to ask them to seek medical attention and get tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace. The Equal Employment Opportunity Commission (EEOC) confirmed that advising workers to go home is permissible and not considered disability-related if the symptoms present are akin to the COVID-19 coronavirus or the flu.
- Best Practice Tip: If an employee is sick or feels like they may be sick, send the employee home.
3. CAN I TAKE AN EMPLOYEE’S TEMPERATURE AT WORK TO DETERMINE WHETHER THEY MIGHT BE INFECTED?
Yes. The EEOC confirmed that measuring employees’ body temperatures is permissible given the current circumstances. While the Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA, the federal agency recognizes the need for this action now because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued related precautions. However, as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.
- Best Practice: While we’re generally not a big fan of temperature checking at work, if it’s a step you decide to take, be sure to ensure the person administering the temperature checks has proper personal protective equipment such as a mask and gloves.
4. AN EMPLOYEE OF OURS HAS TESTED POSITIVE FOR COVID-19. WHAT SHOULD WE DO?
The CDC/Health Department will obtain a list of other employees that the infected employee has been around and will contact those potentially infected employees to require that they self-quarantine for 14 days. You should cooperate with the health officials should they contact you during this process to obtain employee contact information. Those testing positive should stay home, take protective measures, and seek medical attention as appropriate.
- Best Practice Tip: You should also consider asking a cleaning company to undertake a deep cleaning of your affected workspaces, encourage employees to wash hands frequently, and sanitize work areas following meetings and employee interactions as best as possible. In addition, speak with the company leaders to ensure they are trained and ready to assist with questions or handling stress/anxiety related issues from affected employees once they learn about the positive test results.
5. ONE OF OUR EMPLOYEES HAS A SUSPECTED BUT UNCONFIRMED CASE OF COVID-19. WHAT SHOULD WE DO?
Take the same precautions as if the employee has tested positive, sending home the potentially infected employee. Communicate with your affected workers to let them know that when someone suspects they may be ill with the virus, Company protocol is to send that person home immediately, and encourage any employees who suspect they may be ill, to stay home in the first place.
6. ONE OF OUR EMPLOYEES SELF-REPORTED THAT THEY CAME INTO CONTACT WITH SOMEONE WHO HAD A PRESUMPTIVE POSITIVE CASE OF COVID-19. WHAT SHOULD WE DO?
Take the same precautions as noted above in #5. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that an employee was sent home appearing to be asymptomatic (no symptoms) for the virus, but you are acting out of an abundance of caution.
7. ONE OF OUR EMPLOYEES HAS BEEN EXPOSED TO THE VIRUS BUT ONLY FOUND OUT AFTER THEY HAD INTERACTED WITH CLIENTS AND CUSTOMERS. WHAT SHOULD WE DO?
Take the same precautions as noted in #5 with respect to coworkers, treating the situation as if the exposed employee has a confirmed case of COVID-19 and sending home potentially infected employees that he/she came into contact with. As for third parties, you should communicate with customers and vendors that came into close contact with the employee to let them know about the potential of a suspected case.
8. CAN WE REQUIRE AN EMPLOYEE TO NOTIFY THE COMPANY IF THEY HAVE BEEN EXPOSED, HAVE SYMPTOMS, AND/OR HAVE TESTED POSITIVE FOR THE COVID-19 CORONAVIRUS?
Yes, you should require any employee who becomes ill at work with COVID-19 coronavirus symptoms to notify their supervisor. Employees who are suffering from symptoms should be directed to remain at home until they are symptom-free for at least 24 hours.
While outside of work, if an employee begins experiencing symptoms, has been exposed to someone that is exhibiting symptoms, or has tested positive, the employee should contact your company by telephone or email and should not report to work.
9. WE ARE HIRING EMPLOYEES DURING THE OUTBREAK; WHAT STEPS CAN WE TAKE TO PROTECT OUR WORKFORCE?
The EEOC has confirmed that you may screen applicants for symptoms of the COVID-19 coronavirus after you make a conditional job offer, as long as you do so for all entering employees in the same type of job. You can also take an applicant’s temperature as part of a post-offer, pre-employment medical exam after you have made a conditional offer of employment.
The EEOC has also stated an employer may delay the start date of a new hire who has COVID-19 or symptoms associated with it. According to current CDC guidance, an individual who has the COVID-19 coronavirus or symptoms associated with it should not be in the workplace. In fact, the EEOC has also indicated an employer may withdraw a job offer when needing the new hire to start immediately, but the individual has COVID-19 or symptoms of it.
10. CAN AN EMPLOYEE REFUSE TO COME TO WORK BECAUSE OF FEAR OF INFECTION?
Yes, if they believe they are in imminent danger per Section 13(a) of the Occupational Safety and Health Act (OSH Act). The Act defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”
The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem.
11. CAN WE OPEN CHILDCARE CENTERS AT OUR WORKPLACE FOR EMPLOYEES’ CHILDREN WHO ARE NOT ALLOWED TO GO TO SCHOOL?
No. Though while well-intentioned, childcare centers and daycares require proper licensing from your state. Unless you already have or can obtain the proper licensure, you should refrain from doing so. In addition, you should adhere to social distancing – remaining away from others at a distance of at least 6 feet.
12. IS COVID-19 A RECORDABLE ILLNESS FOR PURPOSES OF OSHA LOGS?
OSHA recently published guidance on this issue. OSHA recordkeeping requirements mandate covered employers record certain workrelated injuries and illnesses on their OSHA 300 log. You must record instances of workers contracting COVID-19 if the worker contracts the virus while on the job. The illness is not recordable if worker was exposed to the virus while off the clock. You are responsible for recording cases of COVID-19 if:
- The case is a confirmed case of COVID-19;
- The case is work-related, as defined by 29 CFR 1904.5; and
- The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).
- Best Practice Tip: Call us for consultation on this situation if it arises in your organization.
13. CAN WE PROHIBIT AN EMPLOYEE FROM TRAVELING TO A NON-RESTRICTED AREA ON THEIR PERSONAL TIME?
No. However, you can ask the employee to remain away from work for 14 days upon returning from traveling.
14. DOES THE COVID-19 CORONAVIRUS EMERGENCY VOID HIPAA PRIVACY RULES?
No. Be respectful of releasing any confidential or potentially health related issues regarding employees. Be sure not to share protected health information in or outside the organization, unless required.
15. MAY COVERED ENTITIES SHARE PROTECTED HEALTH INFORMATION WITH PUBLIC HEALTH AUTHORITIES?
Yes, but only when there is a legitimate need to share information.
16. IF OUR EMPLOYEES ARE NO LONGER WORKING, ARE THEY STILL ENTITLED TO GROUP HEALTH PLAN COVERAGE?
Check your group health plan document/or certificate of coverage or give us a call for help.
17. IF WE UTILIZE CONTRACTORS OR TEMPORARY EMPLOYEES TO SUPPLEMENT OUR LABOR FORCE, MAY THOSE INDIVIDUALS PARTICIPATE IN OUR GROUP HEALTH PLAN?
Check your group health plan document/or certificate of coverage.
18. DO WE HAVE AN OBLIGATION TO PROVIDE NOTICE UNDER THE FEDERAL WARN ACT IF WE ARE FORCED TO SUSPEND OPERATIONS ON ACCOUNT OF THE CORONAVIRUS AND ITS AFTERMATH?
Yes, if your company is covered by the Worker Adjustment and Retraining Notification (WARN) Act.
- Best Practice Tip: Contact your HR Consultant if you are considering a layoff.
19. WILL THIS LAW REALLY BE ENFORCED IN LIGHT OF THE OUTBREAK?
In the aftermath of an outbreak, the extent to which the U.S. Department of Labor will focus upon enforcement of the WARN Act remains to be seen. Nonetheless, the law provides stiff penalties for non-compliance, including up to 60 days of back pay and benefits, along with a civil penalty of up to $500 per day.
Please call us if we can help you in implementing your COVID-19 Response Plan! We’ll be working on ideas and suggestions to support your business during this time. This is “hot off the press” so updates may come to you for clarification prior to the effective date. Please reach out to us with questions or clarification.
Remember, this document serves as a practical guide to you, our client, and is not intended to be a substitute for legal advice. If you need a legal opinion, we encourage you to reach out to an attorney.
Help Before April 2, 2020 (Effective Date) – and After!
Let us help you prepare written employee communication about what happens after the legislation takes effect- both to employees and leaders. In the meantime, work with your consultant on how to share information with your employees about the upcoming law, and information that is coming soon.
COMMUNICATION TO LEADERS VIA WEBINAR
Host a webinar to train your leaders on the importance of not overreacting to situations in the workplace potentially related to COVID19 in order to prevent panic among the workforce.
COMMUNICATION TO EMPLOYEES VIA WEBINAR
Host a webinar to inform your employees on the Families First Coronavirus Response Act and conduct Q&A session.
- Assist with developing a written infectious disease preparedness and response plan as it relates to employees, benefits, pay, etc.
- Create a temporary remote (telework) policy.
Review, update and/or create a job description for every position within the company to include essential functions specific to the Americans with Disabilities Act (ADA) and Americans with Disabilities Act Amendment Act (ADAAA).
TRACKING MECHANISMS FOR E-FMLA
Help to update paid sick time tracking systems and develop EFMLA tracking logs.
Assist you with disseminating and posting the notice from the Department of Labor (once it is developed and communicated).
ASSISTING WITH FURLOUGHS, LAYOFFS OR CLOSINGS
Your Integrity HR consultant can provide you with a decision matrix to assist you with determining how to manager furloughs or layoffs in a nondiscriminatory manner.
RETURNING TO WORK
When we get through this, we’ll be here to help you recall, rehire, or re-onboard team members, helping with benefits programs.
CONNECTING WITH YOUR STAFF AND COMMUNICATIONS
Let us help with any other business continuity related matters where we can.