COVID-19

Your Coronavirus Headquarters

If you are like many of the employers across the nation – you are likely receiving unique questions around your benefit offerings that stem from COVID-19. We have created this page to use as a living resource to answer the most common questions sliding across our desk. 

NEW! H.R. 6201 Mandates Paid Leave

In response to COVID-19, Congress passed H.R. 6201 and the President signed it into law as of March 19th. Known as the “Families First Coronavirus Response Act,” this legislation makes temporary changes that require coverage of COVID-19 testing, paid sick leave, and expanded FMLA coverage. The provisions laid forth in the bill went into effect April 2, 2020 and will sunset December 31, 2020.

Frequently Asked Questions

    1. When am I eligible for paid sick leave based on a “substantially similar condition” specified by the U.S. Department of Health and Human Services? UPDATED 4.3
      The U.S. Department of Health and Human Services (HHS) has not yet identified any “substantially similar condition” that would allow an employee to take paid sick leave. If HHS does identify any such condition, the Department of Labor will issue guidance explaining when you may take paid sick leave on the basis of a “substantially similar condition.”
    2. Does the paid leave focus on days specifically or 80 hours? Meaning do we need to give employees the full 14 days off or simply two working weeks totaling 80 hours?
      The bill specifies 80 hours and is not specific to actual days.
    3. Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave? UPDATED 4.3
      The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
    4. I have a FT employee that has to work from home due to schools being closed. She can only do 70% of her job from home. Can we not supplement her leave with SL/FMLA because the leave has to be consecutive? UPDATED 4.3
      You can supplement the remaining 30% with SL due to new guidelines released on Wednesday, April 1st.
    5. If someone can’t perform their job at home (service tech) and they are being told to shelter in place, is that grounds for the paid sick leave two-week pay?
      If they are being told by some official source, I.E. a local, state, or federal government, or if they have an order from a healthcare provider, then yes, that qualifies them for the 80 hours of paid sick leave.
    6. When is the FFCRA effective date? Updated 4.3
      The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020. 
    7. What qualifies as quarantine order – is that the same as Lenny Curry’s recent mandate?
      Yes, that would be correct. Keep in mind that the quarantine order under the final version of the legislation would only qualify people for the 80 hours of paid sick leave. E-FMLA will only apply to those who can’t telecommute and have no child care due to COVID-19 closures.
    8. Is the paid sick leave retroactive since it does not go into effect until 4/2/20?
      No. It is not retroactive
    9. Are per diem (as needed) employees eligible, even if they have a full time job somewhere else?
      If they are part time and were scheduled to work prior to the outbreak, I would say yes.  Though this is likely to be addressed in the final rules released by the DOL.
    10. Have you heard anything about what to do for sure regarding Sales Commission employees who do not get any paid time off or do not have a salary?
      The average regular rate based on the last six (6) months prior to the commencement of leave. If the employee has not worked for the employer for the last six (6) months, then the employer uses the average regular rate of pay for each workweek the employee has worked prior to the start of leave. If employees receive commissions or tips in addition to a direct cash wage, the employer must factor-in these amounts to determine the employee’s average regular rate of pay. Thus, under this statute, the employer is paying for a portion of the tips an employee previously received from a customer. 
    11. What will happen if an individual has 2 separate instances where they qualify for the FFCRA?
      If you are referring to someone who works to separate jobs, they would qualify in both instances. The point of the bill is to make these employees’ income whole.
    12. How does the law pertain to a staffing agency. The sick time and the FMLA.
      This depends on whether your agency is  considered a “joint employer” or “integrated employer” under FLSA.  If an employer is a joint employer under the FLSA, all of the employees it holds in common with the other joint employer must be counted toward the 500-employee threshold for purposes of the Emergency Paid Sick Leave Act and the Emergency FMLA Expansion Act. This includes temporary employees who are jointly employed by the employer and another employer (regardless of whether the jointly-employed employees are maintained on another employer’s payroll).  Under the FMLA, companies can be considered so interrelated that they constitute a single employer. The factors generally considered in evaluating integrated employer status include (1) common management; (2) interrelation between operations; (3) centralized control of labor relations; and (4) degree of common ownership or financial control. No single factor is determinative; rather, the entire relationship between the entities is considered. As with joint employers, if two or more entities are considered an integrated employer under the FMLA, employees of each of the entities making up the integrated employer will be counted in determining employer coverage under the Emergency Paid Sick Leave Act and the Emergency FMLA Expansion Act.

      Employers may be weighing whether to rely on the joint employer theory or the integrated employer theory to argue they are not subject to the Emergency Paid Sick Leave Act or the Emergency FMLA Expansion Act. Employers should carefully consider this option before invoking it, as relying on these theories could have ripple effects across a host of federal and state laws, including the FMLA, FLSA, ERISA, and state workers compensation and unemployment compensation rules. It may also affect eligibility for benefits under future COVID-19 relief legislation. Therefore, employers should conduct a detailed assessment of their operations and consult with counsel regarding any attendant risks before relying on these theories.
    13. If our employee has told us that her child care (which was provided by an individual not a daycare center) is no longer available – the person who was watching is now afraid of the virus and no longer watching the child… does this qualify for sick leave? for efmla leave? UPDATED 4.3
      This would qualify for sick leave if telework is not available for that employees. You must require your employee to provide you with appropriate documentation in support of such leave, just as you would for conventional FMLA leave requests. For example, this could include 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. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason. If you intend to claim a tax credit under the FFCRA for the expanded family and medical leave, you should retain this documentation in your records. 
    14. County has issued a stay at home order does this fall under quarantine under the sick leave guidelines. UPDATED 4.3
      Yes, provided the employee has been advised to self-quarantine due to concerns related to COVID–19 and is unable to telework.
    15. If a person is quarinteended, but is not really sick. Do I have to pay that person sick leave? UPDATED 4.3
      The only way to qualify in this instance is if they are unable to telework, have been ordered to quarantine due to a governmental advisory and is actively missing out on working hours that are available at their place of employment. Meaning – if your plant has closed down and employees do not have work to perform – they would not qualify. If your plant is operational and there is work for this employee to perform had he/she been able to be there.
    16. In the hospitality industry where the restaurants are closed, do the service staff qualify for this pay?
      Yes. The guidance affirms that commissions, tips, and piece rates should be incorporated into the regular rate calculation.
    17. If we pay someone for the shelter in place and then it comes out that they DON’T qualify for that pay – is there a way to recoup that money? 
      There is currently no mechanism in place within this legislation to recoup money already paid to an employee. Per guidance from the DOL:  you must require your employee to provide you with appropriate documentation in support of the reason for the leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised you to self-quarantine. For example, this documentation may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave wages, you should retain this documentation in your records.
    18. If my business loses revenue which is used to pay commission and we lose revenue, do I have to pay my commissionable sales people? UPDATED 4.3
      Yes. The guidance affirms that commissions, tips, and piece rates should be incorporated into the regular rate calculation. This calculation is based on a 6 month look back period to average out their pay. 
    19. Also in the hospitality industry, should the service staff be paid an average rate including tips for their PTO or just minimum wage? 
      Under both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, paid leave is to be calculated based upon the employee’s regular rate of pay. Note that “regular rate of pay,” as a general matter, includes all remuneration paid to the employee. The guidance affirms that commissions, tips, and piece rates should be incorporated into the regular rate calculation. The guidance clarifies that, for purposes of calculating paid sick leave, an employee’s regular rate of pay will be the average of their regular rate over a period of up to six months prior to the date that the employee takes leave. If the employee has not worked for the employer for six months, the regular rate of pay will be the average of the employee’s regular rate of pay for each week worked for the employer. Alternatively, an employer may calculate an employee’s regular rate of pay by adding all compensation that is part of the regular rate over the prior six months (or lesser period of time worked) and dividing that sum by all hours worked in the same period.
    1. If ordered by the provider to self-quarantine can we request proof of this from the provider? I have heard conflicting answers on this.
      Yes, you are allowed to request proof from the provider. 
    2. Suggestion on proof of illness if a doctor’s note is not available?
      There are so many options through telehealth that a doctor’s note is easy to get. Outside of this, you are allowed to take their temperature and could use this method if they are unable to get a note from the doctor.
    3. If an employee calls in for cold symptoms and has a low fever do they get paid the sick leave or do they have to test positive for COVID-19 first? We have an employee that called in on Monday with said symptoms and then was told to stay home until the cold symptoms were gone.
      It is up to the employer as to whether they want to require proof of diagnosis. It is wise to keep sick people home, particularly if symptoms are similar. Keep in mind, that until April 1, this employee will not have these benefits available to them, and will need to utilize existing PTO and sick leave. 
    4. Can an employer institute a reduction in hours due to the pandemic and allow for benefits to continue? If so, are there minimum work requirements?
      During the pandemic, carriers are taking an employer management response. Meaning employers make the call but it needs to be non-discriminatory and based on the current FT class. Meaning, redefining FT class to PT does not allow for current PT to be eligible for benefits.
    5. How can an employer ask for proof of the Coronavirus test if no tests are available? If it is “showing symptoms” – who makes that call? A medical professional? The employer? If the employer, is that a HIPAA violation?
      Keep track of employees who have contracted the COVID-19 virus internally. Not just for federal funds but safety for other employees. You will need to ask the EE to identify all individuals who worked in close proximity with them in the previous 14 days. Note do NOT identify by name of the infected employee or you could risk a violation of confidentiality laws.
    6. Can I require my employees to take their accrued vacation or PTO before the emergency leave? UPDATED 4.3
      An employer may not require an employee to use other paid leave provided by the employer before the employee uses the paid sick leave, nor may an employer require the employee involved to search for or find a replacement employee to cover the hours during which the employee is using paid sick leave. 
    7. 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.
    8. 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 are 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 attendant precautions.
    9. Must we keep paying employees who are not working?
      Under the Fair Labor Standards Act (FLSA), for the most part, the answer is “no.”One possible difference relates to employees treated as exempt FLSA “white collar” paid on a salary basis.

      We caution employers to consider the public relations aspect of not paying employees who may not be working if they have contracted or are avoiding the COVID-19 coronavirus. Given the publicity surrounding this outbreak, it is possible that situations involving these kinds of issues could reach the media and damage your reputation and employee morale. Consider the big picture perspective when making decisions regarding paying or not paying your employees.

    1. Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?UPDATED 4.3
      For the purposes of Employees who may be exempted from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, a health care provider 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.

      This definition includes any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a State or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

      To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.

    2. You mentioned exceptions to the FMLA portion for Emergency Responders is this something in the law or something we make a decision to exclude them? UPDATED 4.3
      For the purposes of Employees who may be excluded from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, an emergency responder is anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

      This also includes any individual whom the highest official of a State or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

      To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

    3. Healthcare providers being exempt, does that apply to the back office personnel?UPDATED 4.3
      For the purposes of Employees who may be exempted from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, a health care provider 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. 
    4. What does it mean that healthcare providers are exempt from the FMLA Expansion Act? What part are we exempt from? Does that apply to us and all personnel?
      We are still awaiting final elements to be released next week and I can answer this at that time. If you do qualify, apply and are approved you will be exempt from the entire bill. This would apply to your entire demographic.
    5. How do you determine who is essential personnel and who isn’t? I know our techs and front desk people would be obvious, but what about back-office personnel such as billing, payment posters or call center personnel?
      As it currently stands, this is decided by you as the employer.
    6. If the Mayor of Jacksonville tells people to stay home, we can’t require them to come in, right? Or is it if they are considered essential personnel, we can require them to?
      The requirement of personnel to stay home will be entirely dependent on what restrictions the Mayor outlines at that point in time and I am happy to help clarify if and when that outline is presented.
    7. Any idea as to when guidance will be issued as to which employers are exempt that have less than 50 employees. UPDATED 4.3
      Section 826.40(b)(1) explains that a small employer is exempt from the requirement to provide such leave when: (1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity; (2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or (3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity
    8. We’re an employer with only 12 employees; does any of this apply to our company? Are we required to file the small business exemption? UPDATED 4.3
      This applies to all companies with less than 500 employees, so yes it will apply. The Department of Labor will further specify the criteria to meet the small business exemption in forthcoming regulations. Section 826.40(b)(1) explains that a small employer is exempt from the requirement to provide such leave when: (1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity; (2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or (3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity
    9. Transit agency? Where do they fall? We are considered a public agency but a different branch is considered a private agency which houses all of our bus operators and maintenance staff, all union workers.  A previous webinar stated transit agencies would fall under both because of the quasi government stipulation.
      It would be wise to consult counsel as this situation is a bit more complex. DOL guidance states: Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

      In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.
    10. Do these benefits apply only to employees who meet the requirements on or after April 1st or can an employee take advantage of these benefits if they have already met the requirements prior to April 1st.  Meaning they have already missed work due to either symptoms or diagnosis.
      Benefits apply only to COVID-19 related matters on or after April 1st. If an employee is on continued leave from prior to these dates, the benefit will become available only on or after April 1st.
    1. Payroll tax credit – does this only apply to social security taxes paid for the employee? Does it apply to medicare taxes also?
      The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.
    2. Do you know how we can claim payroll tax credits to reimburse the company to pay for leave to employees due to the COVID-19? UPDATED 4.3
      When employers pay their employees, they are required to withhold from their employees’ paychecks federal income taxes and the employees’ share of Social Security and Medicare taxes. The employers then are required to deposit these federal taxes, along with their share of Social Security and Medicare taxes, with the IRS and file quarterly payroll tax returns (Form 941 series) with the IRS.

       

      If you would like to expedite this process and need access to those funds now as opposed to later The only form currently needed can be found here. https://www.irs.gov/forms-pubs/about-form-7200 This can be filed for any overages that the payroll tax exemptions do not cover. 
    3. While an employee is on the emergency sick leave should their health benefits still be deducted? UPDATED 4.3
      The employee’s share of premiums must be paid by the method normally used during any paid leave; in many cases, this will be through a payroll deduction. For unpaid leave, or where the pay provided by the EFMLEA or the EPSLA is insufficient to cover the employee’s premiums, the rule directs employers to 29 CFR 825.210(c), which specifies how employers can obtain payment. If an employee chooses not to retain group health plan coverage while taking paid sick leave or expanded family and medical leave, the employee is entitled upon returning from leave to be reinstated on the same terms as prior to taking the leave, including family member coverage.
    4. I think you said wages we pay under this program are not subject to FICA. Is that correct?
      Correct. The FICA withholdings are used to pay the leave. However FICA should be deducted from the employee’s paycheck just as it has been in the past as it will be put into the pool of funds used to cover leave. 
    1. Can the 10 days full paid leave  be “stacked” with the emergency FMLA leave?
      Yes. Keep in mind that the EFMLA leave is only available to those who have lost childcare under the final version of this legislation.
    2. What if a new employee hits 30 days after 4/1? Once they are at 30 days, can they take EFMLA then?
      Yes. Keep in mind that the FMLA leave is only available to those who have lost childcare under the final version of this legislation.
    3. If we already have an employee on FMLA due to other medical reasons, does that employee now fall under the new guidelines?
      Only if they do not have child-care and are unable to work remotely.
    4. Everything that we read states that only those caring for a child that their school or daycare has closed can claim the extended FMLA.
      Any individual employed by the employer for at least 30 days (before the first day of leave) may take up to 12 weeks of job-protected leave to allow an employee, who is unable to work or telework, to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. This is now the only qualifying need for Emergency FMLA and a significant change from the prior version of the bill passed by the House over the weekend, which contained several other COVID-19-related reasons to provide Emergency FMLA.
    5. Not sure what experiencing substantially similar conditions specified by Sec of Health and human services actually means in connection with emergency sick pay? UPDATED 4.3
      The U.S. Department of Health and Human Services (HHS) has not yet identified any “substantially similar condition” that would allow an employee to take paid sick leave. If HHS does identify any such condition, the Department of Labor will issue guidance explaining when you may take paid sick leave on the basis of a “substantially similar condition.”
    6. If employees can work from home but may not be able to get there full weekly hours in are they eligible for emergency sick pay while caring for school-age children up to the 80 hrs. (10 days) max?
      Our personal interpretation is that they can’t both work and utilize PTO. However, this is one of the things that need clarification. We are reaching out to the DOL for clarification and will let you know when we get an answer.
    7. If we have employees who need to take paid leave under E-FMLA due to childcare, how do we get reimbursed? UPDATED 4.3
      The only form currently needed can be found here. https://www.irs.gov/forms-pubs/about-form-7200 This can be filed for any overages that the payroll tax exemptions do not cover. 
    8. If an employee utilizes EFMLA after 12-weeks do they have to be returned to the same shift of work?  They would be doing the same work, just possibly on a different shift.
      As it currently stands there is no direct guidance on this matter however, we would suggest making every effort to keep things as they were. For groups who are under 25 employees and may qualify for an exemption to the Job Resotraton portion of the act, an argument might be possible that due to financial hardships to the company their original shift was unavailable.  Otherwise shifting their shift may open you to liability. We expect further guidance upon release of the final rules.
    9. If an employee is able to and refuses “Tele-Work from Home” are they eligible for paid leave or EFMLA?
      If the employee has all of the tools necessary to work from home and refuses to work this would not qualify them for EFMLA. 
    10. We have an employee over 65, one with compromised lung issues and one that has asthma… would each of these be allowed to take sick leave?  Is a doctor note required? Are we allowed to ask for proof? UPDATED 4.3
      Under new guidelines it is entirely possible they would be allowed to take sick leave. This would require a doctor’s note, but that is the only instance in which they would qualify due to these issues. You are allowed to ask for a doctors note and this can be accomplished through Teladoc if PCP is not available. 
    11. If our employee has told us that her child care (which was provided by an individual not a daycare center) is no longer available – the person who was watching is now afraid of the virus and no longer watching the child… does this qualify for sick leave? for efmla leave? UPDATED 4.3
      This would qualify for sick leave if telework is not available for that employees. You must require your employee to provide you with appropriate documentation in support of such leave, just as you would for conventional FMLA leave requests. For example, this could include 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. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason. If you intend to claim a tax credit under the FFCRA for the expanded family and medical leave, you should retain this documentation in your records. 
    12. Say someone is preparing to take FMLA for pregnancy.  Would they get the 12 weeks for the birth of the child and possibly 10 additional weeks because of child care?
      No, they would not qualify to “double dip”
    1. Do you have material we can present a nutshell version to our team? Updated 4.3
      Yes – The DOL has released an official form to be provided to employees. You can download the form here
    2. With this new policy…how are employers communicating these changes to their employees? My concern is once communicated or how this is communicated, based on the majority of our team having children and etc., we may have a flood of current employees taking advantage of these programs but still have a business to run. Just curious how (if known) any other employers plan to communicate the new changes. UPDATED 4.3
      Here is the link to the required communication you must share with employees.

      The paid sick leave will be available to individuals who have children without child care, but the E-FMLA will only be available to them if they both have no daycare and if they cannot telecommute. I would communicate the leave to your employees and stress that if they are taking it for child-care, they will only get 2/3rds pay. Hopefully, this will incentivize them away from a mass leave.

    3. The guidance that I am seeing says that we can use the current FMLA standard designation form. Have you seen anything different? UPDATED 4.3
      You can access the 7200 form here. There are also instructions on this link specific to documentation requirements. This is used for any overages that the tax credits do not cover due to COVID-19. 
    4. Have any specific employee-facing forms released to claim sick time?
      Not yet. We expect there will be guidance in the new rules but we don’t know if any specific employee-facing forms will be included, as they weren’t part of the directive given to the Secretary of the Department of Labor.
    1. We laid off all hourly employees on March 16 due to school closing. Are we required to include these employees with leave after April 1?
      No, you are not. If they are no longer employees, they do not receive this time off. There are expanded unemployment provisions under this legislation, however, so these individuals should pursue that avenue.
    2. If we have to lay people off can they still keep their benefits?
      No, benefits are offered to employees only. They can, however, opt for COBRA coverage. Many carriers are making allowances for non-payment as well. UHC, for example, will give an individual 60 days before they cancel to non-payment of premiums.
    3. If an employee is terminated today, will they be able to go back to the employer and say they did not offer them their COVID-19 paid leave benefit? If so, what are the penalties?
      Remember, the legislation covers sick pay and FMLA. So if an employee was laid off due to a company-wide lay-off or closure for economic impact, this is different than COVID-19 paid sick leave.
    4. We will be executing a plant furlough. Employees will be immediately eligible for unemployment. How does the sick leave policy apply, if at all, during the period of furlough and employees receiving unemployment?UPDATED 4.3
      Furloughed or Laid Off Employees: An argument can be advanced that if an employer places its employees on furlough or lay off prior to the FFCRA’s effective date (April 1), then they would not be eligible for leave under this provision; however, the express language of the Act is unclear on that topic. At a minimum, employers should take care not to base lay off or furlough decisions on which employees are likely to need leave—or risk claims for retaliation/interference.
    5. If our employees are no longer working, are they still entitled to group health plan coverage?
      Not necessarily. You need to check your group health plan document (or certificate of coverage if your plan is fully insured) to determine how long employees who are not actively working may remain covered by your group health plan. Once this period expires, active employee coverage must be terminated (unless the insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive applicable eligibility provisions), and a COBRA notice must be sent. If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agree to cover claims relating to participants who would otherwise be ineligible for coverage.
    6. What happens to group health plan coverage if employees are not working and unable to pay their share of premiums? UPDATED 4.3
      In the normal course of events, group health plan coverage will cease when an employee’s share of premiums is not timely paid. However, several actions might be taken that could allow coverage to continue. Please contact us for the specific measure to be taken.
    1. Are there any protocols in place for premium holidays due to the economic impact of the pandemic? Updated 4.3
      Yes. All of the major carriers represented in the Jacksonville market have provisions in place for grace periods. In fact, they all are offering special enrollment periods too for employees who previously waived coverage to enroll. Keep in mind this does not allow those with existing coverage to change their plan selection. Reach out to our team for the specific open enrollment dates as they vary by carrier.   
    2. Are quarantine benefits offered on STD policies? And if so, is this benefit payable for non-illness related quarantines during the pandemic?
      The answer here depends on your policy. Some STD policies allow for payment during quarantine separate from an illness if the employee cannot work remotely. Some only pay if there is an illness associated with it.
    3. If an employee is affected by a reduction in hours and has a disability, what will the benefits be based on (before or after reduction due to pandemic)?
      The earnings definitions will apply to the policy so it depends on how the policy was set up originally. If based on W2 earnings, then the reduction in hours/income will not be affected because benefits are based on 2019 earnings.
    4. If a company has either Basic Life or Voluntary Life and a member passes away due to the COVID-19 virus, will benefits be payable? Asked another way, are there any exclusions for deaths related to pandemic illnesses?
      Again, this goes back to the carrier and plan in effect. We recommend looking into the exclusions and limitations of the policy itself.

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CARES ACT Frequently Asked Questions

  1. Regarding the broad definition of the stay at home order – if you are listed as an essential business, is the employee still able to use the sick bank if they do not want to come in and do not have a doctors note?  This is two questions in one. Nobody can use the sick leave without a doctor’s note, or to get diagnosed due to symptoms as described by the CDC (fever, dry cough, or shortness of breath).  
    On the federal level, there has been guidance from the Department of Homeland Security defining essential business and advising local governments to exempt them from stay at home orders.  Localities do not have to follow this guidance at this point, but in the case of Governor Desantis’s order, Florida has done so. All that to say – essential business’s employees still have the ability to take both forms of leave as long as they have a qualifying reason.  Only emergency workers and healthcare workers are unable to utilize this leave under exceptions found in number 56 and 57 of the Department of Labor’s Questions and Answers.
  2. Regarding telework requirements – we have limited laptops available and actually pulled some back from some employees in the event we needed to redeploy them during a quarantine/shutdown.  Since we are an essential business that is still working, if an employee could telework are we required to provide them with a laptop if they do not currently have one? 
    The DOL has encouraged flexibility in this area. If they have a personal computer and are able to use it instead, that is an option.  (See the example in the second paragraph of page 15 of the temporary rules promulgated by the Department of Labor.) It is our understanding that if you are operating in a locality that is following the Department of Homeland Security’s guidance (such as the State of Florida) regarding essential businesses, “Workers should be encouraged to work remotely when possible and focus on core business activities. In person, non-mandatory activities should be delayed until the resumption of normal operations.”  The guidelines encourage you to make every reasonable effort to allow telework, but it is not a requirement.
  3. We pay base plus commission.  If our average commissions go down during the forgiveness verification period, it will be held against us, even though it’s a function of our projects that are paid out. 
    This appears to be true.  Keep in mind that unless there is a 25% reduction in pay compared to the most recent full quarter, it will not be held against you.  It’s only salary reduction in excess of that 25% that will reduce the forgivable portion of your loan. It would be advisable, however, to discuss this with your bank to fully understand how the forgiveness will be handled in this specific instance. As regulations are finalized, this may be addressed more specifically, so stay tuned.
  4. Have you heard if the bill includes the “pause” of student loans for 6 months?  I have heard both yes and no and I have a few employees who have asked me about this. 
    Under the CARES Act, all payments of principal and interest for certain federal student loans are suspended, and will be treated as if made for the purposes of credit reporting.  The bill also allows employers to pay up to $5,250 annually towards an employee’s student loans on a tax free basis for any payments between March 27, 2020 and January 1, 2020. You can find the specific text here, here, and here.  I would encourage these individuals to contact their respective lenders.

    The sample application specifies average monthly payroll, not mentioning inclusion of rent, debt expense, etc.  This is true, but the definition of “payroll” in the bill clearly includes these other expenses. See here. As your SBC approved bank of choice will be able to clarify, and we would advise you to speak with them directly about their specific application. Since that sample went out, banks have gone live with a final version of the application – be sure to consult with them.
  5. If an employee has to stay home and request paid leave because their spouse can’t stay home with their children, do we pay them, no questions ask?
    This depends on the situation. Regardless, they must provide proof that they have lost childcare due to COVID-19. If their spouse is one of the exempt emergency service or medical personnel, they may not be able to take leave.  Under the most recent DOL Rules, if another parent is available at home to care for a child who no longer has day care or available school, an employee will not qualify for leave. Keep in mind that there is no metric for enforcement, and you cannot require them to prove their spouse is still working. The best you can do is advise them of the rules, and be sure they realize we don’t know how long this crisis will last, and it would be prudent to take consecutive leave so that they have 24 weeks available for childcare. 
  6. On the PPP application at what point in the year do we record # of jobs?
    This will depend on your specific circumstances and your employees.  Consult your SBA approved bank of choice for clarification.
  7. If someone’s child care has closed and they technically can telework, but they’ll need to stay home with two kiddos under the age of 6, are they eligible for sick leave to stay home and not work?
    Yes. The loss of child care qualifies them for the sick leave as long as there is no alternative means for the child. IE – Family member to watch your child etc. 
  8. If we have already submitted our EIDL loan application prior to the passage of the CARES act how do we now modify the application to request the advance of $10k? The application was submitted through the SBA website on 3/23 prior to the site closing to applications.
    The current guidance is to resubmit with the new online portal that was opened last night. It’s very similar than the submission portal from last week but there are some additional questions that are required.
  9. Are PPP and EIDL mutually exclusive?  Do I have to apply for PPP first then EIDL?
    No they are not, and no you do not.
  10. Looks like we need to lay off some people for 2 weeks and will also be applying for the Cares Act SBA loan. Is it possible to do that? If so, how?
    You may rehire them once your loan gets funded to take advantage of the forgiveness provisions
  11. How are amounts determined for EIDL?
    Our current understanding is six months of gross margin, there is ambiguity around the definition of gross margin per industry.
  12. Our company uses independent contractors to deliver services. Can we add the payments to them as part of our request for money from this Cares Act? 
    Yes
  13. Can SBA loans be used for employees that are scheduled to start in April, but have not started yet?
    Yes
  14. For individual tax payers who filed extensions on personal returns to 10/15, do those extensions still hold and were due to file by 10/15?
    Yes
  15. What happens if you already filed your 2019 personal and don’t qualify, but would have qualified if using 2018?
    You will not get a rebate.  It is based on the 2019 filing.  The only time the 2018 filing is used is if a 2019 return has not been filing.
  16. Let’s assume you receive 250% of average monthly payroll and as a restaurant, you have already laid most off. Part of your proceeds will be used for rent, mortgage, utilities, group health etc – when and how many employees must you rehire to forgive all of the debt?
    You will need to have the same level of employees that you did as of 2/15/2020.
  17. Does the one-time check apply to all taxpayers or only citizens?
    You need to have a social security number.  A nonresident alien won’t get a rebate check.  If you are a resident alien with a social security number and file single, you will get a check. If you are married to a person that does not have a SSN or have dependents that don’t have a SSN, no check will be issued.
  18. As a C-corp applying for the PPP relief. If people in the company make more than 100K, does the loan forgiveness on payroll include just the 100k (IE 8,333.000 per month) or if you make more than 100k in a year is that person’s payroll excluded?
    It’s the former not the latter, you always get credit for the employee just up to $100K , this is the case on the loan calculation amount and the forgiveness provisions.
  19. Are bonuses/commissions considered “wages” in the PPP? What about employees who have a base plus commission and their wages fluctuate?
    Yes they are. Payroll costs” are broadly defined to include: salary, wages, commissions, and similar compensation (not exceeding $100,000 annualized per employee); payment of cash tips or their equivalent; payment for vacation, parental, family, medical, and sick leave; allowance for dismissal or separation; payment required for group healthcare benefits, including premiums; payment of retirement benefits; payment of state or local tax assessed on compensation to employees; and payments of compensation to or income of a sole proprietor or independent contractor. Regarding the PPP from an employers standpoint, the lookback period is the average pay over the past 12 months.
  20. Regarding the number of employees, if we have some employees that choose to file with unemployment for a temporary layoff, do those employees lower our employee count?
    No they do not. The questions you will be asked for application require you to list the number of employees within your organization in January of 2020. Then you will be asked to reflect on your number of employees as of February 15th, 2020. 
  21. We have a couple contracted employees — from a staff leasing company (Westaff) — are these counted as our payroll costs?  We are continuing to use their help, will that be part of our forgivable loan expense?
    Yes, our interpretation of the law is that these employees will be factored into your loan forgiveness. The point is to make an employer whole which includes the use of contracted employees within your outgoing expenses.
  22. If we have done layoffs and pay reductions but do not want to hire any back what amount will we not be forgiven on?
    This is dependent on your employee count prior to February 15th. The amount which will not be forgiven will be equal to the total amount of payroll you were paying for those laid off employees. We would suggest putting that additional money aside to immediately pay back to the IRS once given the option. 
  23. Is the only restriction the 500 employee max, or is there any revenue to total value exclusion from this?
    Not at this time. Under Title IV of the CARES Act, the Treasury Secretary is broadly authorized to make up to $500 billion in loans, loan guarantees, and other investments in support of “eligible businesses.” An “eligible business” is “a United States business that has not otherwise received adequate economic relief” under other provisions of the CARES Act. The CARES Act does require the Treasury Secretary to ask the Federal Reserve to create a special direct loan program for businesses and nonprofit organizations with between 500 and 10,000 employees. The interest rate on such loans would be capped at 2% per annum, and for the first six (6) months no principal or interest would be due. We expect more details to be forthcoming as regulations are released.
  24. If we have work, but team members don’t feel comfortable coming to work- will they qualify for unemployment insurance?
    No. Not unless they are under specific medical orders to avoid work, or if they have been directed by local, state, or federal officials to quarantine or shelter in place.
  25. The Disaster Loan and the PPP loan can both be applied for?
    That is correct.
  26. If we have over 500 team members but not all at one location, are we required to follow the FFCRA?
    Ultimately, this will be determined by the SBA’s size standards for small business. You can go here and get more details – some industries have a different size standard. It would be advisable to consult either an attorney or a tax professional who specializes, if you are near this line of delineation.
  27. What about bonuses paid to employees are they included for total payroll costs? What if the bonus makes employee wages exceed $100k?
    The maximum covered amount is $100k per individual. Any amount over that does not qualify.
  28. If a business has already laid off and/or had a salary reduction, in order to have the loan forgivable they would need to make an attempt to hire back those employees and make the salary adjustments? To restore pay by the end of June does not mean to pay back all missed wages?
    Reductions in employment or wages that occur during the period beginning on February 15, 2020, and ending 30 days after enactment of the CARES Act, (as compared to February 15, 2020) shall not reduce the amount of loan forgiveness IF by June 30, 2020 the borrower eliminates the reduction in employees or reduction in wages. The employer will not be responsible for paying back wages.
  29. If you laid off employees and hired them back.  You have to pay their back payroll? What if they filed for unemployment?
    You are not responsible for back wages if you laid off an employee. If you do lay off employees, you won’t be forgiven for any wages you don’t actually pay, but your remaining employees’ wages will still be forgiven.
  30. Is it relief or deferral?
    There are two different programs. Employee Retention Credits under the CARES Act, employers may be eligible for a refundable tax credit for the employer’s share of the 6.2% Social Security tax (the “SSI Tax Credit”). The potential SSI Tax Credit is for 50% of the first $10,000 in qualified wages (including health plan expenses) paid to each employee commencing on March 13, 2020. To be eligible, an employer must (i) have had operations fully or partially suspended because of a shut-down order from a governmental authority related to COVID-19, or (ii) have had gross receipts decline by more than 50% in a calendar quarter when compared to the same quarter in 2019 (and will remain eligible until the earlier of (i) gross receipts exceeding 80% relative to the same quarter in the prior year, or (ii) December 31, 2020). For employers with more than 100 employees (based on 2019 employment levels), qualified wages are limited to wages paid to employees who were not providing services due to the COVID-19 crisis. Note, however, that the SSI Tax Credit is not available if the employer receives a covered loan from the SBA, as discussed above under Forgivable SBA Loan Program.
  31. Regarding deferrals, in addition to potentially receiving the SSI Tax Credit, the CARES Act allows employers to defer the payment of the employer’s share of the 6.2% Social Security tax on wages paid beginning on March 27, 2020 and ending on December 31, 2020. A corresponding deferral is also permitted for the equivalent portion of self-employment taxes. The deferred amounts are payable in two installments, with 50% of such taxes being due on December 31, 2021, and the remainder due on December 31, 2022. This deferral of Social Security taxes is not, however, allowed where the employer has had a covered loan forgiven, as discussed above under Forgivable SBA Loan Program.

    Can we elect to request less loan amount than our 2.5 x monthly average amounts to?
    This information has not yet been disclosed and we expect more information next week. 
  32. What about companies who are essential business – employees are coming to work – but there is not enough work to keep them productive. Can we send them home and use the PPP to cover their wages?
    Yes, you can use PPP to cover their wages. The purpose of this relief is to help you keep employees on the books for the duration of this virus outbreak. 
  33. For 1099 employees, the company can not include those “wages” as lost pay?  Does the 1099 have to file for the loan, or would it be the company that they partner with that does this? 
    The 1099 will have to file for the loan. If you work as an independent contractor, you are by default considered to be a sole proprietor in the eyes of the IRS. This means your freelance income gets reported annually on a Schedule C within your personal tax return. You will have a Schedule C even if you pick up odd jobs or do freelance work, and this Schedule is based on the 1099-MISC forms you collect from the companies or individuals who have hired you as a contractor.

    Your salary is most easily determined by looking at the net profit listed on your Schedule C. If you have already filed your 2019 taxes, or prepared a 2019 return, this will be reported on line 31 of the Schedule C. If you have not filed your 2019 taxes but have accurate bookkeeping completed for all of 2019, this will be the Net Profit line on your Income Statement.

    If you have neither of those things, your best estimation would come from adding all of your 1099-MISC income together. To find your monthly average, simply divide this amount by 12. If your annual net profit is over $100,000, you may only claim up to $100,000 divided by 12.
  34. Do you know how the unemployment claims during covid 19 will affect the employer’s rate?
    We have not seen any guidance to suggest that this will be the case.
  35. Can you apply for both an SBA Grant and the SBA PPP portion or is it just one or the other?
    You may apply for both.

Do you offer a STD Policy?

If you offer an STD policy to employees it is important to confirm if your policy has a quarantine benefit. Some policies will exclude paying the insured a benefit during a quarantine while others will offer the benefit in full. 

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The content provided has been prepared from various sources and is for informational purposes only and does not constitute legal advice. We hope you find the information useful. The information should not be used to act upon without first seeking appropriate legal counsel.