Frequently Asked Questions

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 will go into affect April 2, 2020 and they sunset December 31, 2020.

Frequently Asked Questions (Updated 3/27/2020)

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?

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.

Under guidance that will be released next week, eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS.

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.

If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. The details of this new, expedited procedure will be announced next week. 

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.

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. 

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. 

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. 

Has DOL released a form for employees to use to claim the paid leave or EFMLA?

There is no official form as of yet. We expect these to be released next week and will keep you updated.

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?

I believe this falls under FMLA and ADA and would need to follow those guidelines. There are not currently any qualifications for sick leave due to being immunocompromised. 

Any idea as to when guidance will be issued as to which employers are exempt that have less than 50 employees.

We expect this information to be released next week 3/30/20

While an employee is on the emergency sick leave should their health benefits still be deducted?

This depends.  The DOL released FAQs that indicated that insurance premiums will be covered along with the cost of paying employees using sick leave.  Whether or not this includes the employee only share or the employer share of the premium isn’t clear, though we expect clarification with the release of the rules. 

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. 

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.

And when will the IRS issue the form to request a refund if the tax credit is more than the payroll taxes.

For any overages that the immediate dollar for dollar tax exclusions do not cover they expect to disperse payment to companies within two weeks of application for reimbursement.

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?

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. You should consult IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.

County has issued a stay at home order does this fall under quarantine under the sick leave guidelines.

Yes, provided the employee has been advised to self-quarantine due to concerns related to COVID–19. 

Will O&A present any details on funding, refunds and other financial issues?

Yes. Please stay tuned for updates as they become available. 

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. 

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?

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.

If a person is quarinteended, but is not really sick. Do I have to pay that person sick leave?

In order to qualify for this leave, they will need to have been diagnosed with COVID-19 symptoms and ordered to isolate or quarantine by a medical professional. 

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.

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.

If my business loses revenue which is used to pay commission and we lose revenue, do I have to pay my commissionable sales people?

Yes. The guidance affirms that commissions, tips, and piece rates should be incorporated into the regular rate calculation. 

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.

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”

Do we have any issues with reducing hourly employee hours?

A company may reduce hours as needed.

Transit agency?  Where do they fall?  JTA is considered a public agency but JTM 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.

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 1.

Have a question we haven’t answered?

Frequently Asked Questions (Updated 3/25/2020)

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. 

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. 

Do we have any more guidance for what is defined as a healthcare provider? Are nurses included in this definition?

Healthcare Providers who are exempt will be determined the same way as companies who are under 50. There will be an application and approval process through the Secretary of the Department of Labor. Once these rules are released we’ll have the details of the application.

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.

Can the 10 days full paid leave to be “stacked” with the emergency FMLA leave?

Yes. Keep in mind that the FMLA leave is only available to those who have lost childcare under the final version of this legislation.

I have an 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? 

According to §5102(c), the leave terminates when the next scheduled shift of the employee begins, so to answer your question, no you cannot supplement the work schedule with this leave. This will remain the case unless the DOL guidelines indicate otherwise.

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.

In regards to effective date – is it on or after 4/2/20? Not before? Updated 3/26/20

The legislation was originally thought to begin on 4/2/2020. However, the DOL has released the official start date as 4/1/2020.

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.

Do you have material we can present a nutshell version to our team?

Yes – we have one that O&A has put together. However, the department of labor will issue official notices for you to give out. We expect those within a week or so.

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.

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?

This is an exception that you will have to apply for the Department of Labor. The specifics will be part of the final rules that we expect to see shortly.

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.

There will be a required communication from the department of labor. 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.

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.

The guidance that I am seeing says that we can use the current FMLA standard designation form. Have you seen anything different?

The legislation says that the DOL will release specific guidelines. They may be the same as existing designation forms, but we will know for sure when they release them. There is no need to utilize any forms for this leave, however, until April 1 when the law goes into effect. By this point, the rules should be available from the DOL.

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.

Healthcare providers being exempt, does that apply to the back office personnel?

This will be clarified in the rules – we expect there to be an application for exemption put in place, but we won’t have the specifics until they are released by the DOL.

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.

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.

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.

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.

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.

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.

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.

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.

Not sure what experiencing substantially similar conditions specified by Sec of Health and human services actually means in connection with emergency sick pay?

This is an excellent observation, and one of the ambiguous portions of the bill that I was talking about during the presentation. I expect we will see rules clarifying from these agencies, but as of right now we don’t have specific “conditions” as described in that portion of the legislation.

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.

Frequently Asked Questions

Are there any protocols in place for premium holidays due to the economic impact of the pandemic? 

No protocols as of now. Carriers are working with several parties including state regulators. We will keep you informed as things evolve.

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.

Are quarantine benefits offered on STD policies? And if so, is this benefit payable for non-illness related quarantine’s 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.

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.

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.

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.

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.

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. 

Frequently Asked Questions

What kind of paperwork will need to be filled out for employer reimbursement from the government?

Guidance is expected and forthcoming.

Is the paid sick leave retroactive since it does not go into effect until 4/1/20?

No. It is not retroactive

If we have employees who need to take paid leave under E-FMLA due to childcare, how do we get reimbursed?

Under guidance that will be released next week, eligible employers who apply to qualify sick or child-care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child-care leave that they paid, rather than deposit them with the IRS.

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?

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.

Can I require my employees to take their accrued vacation or PTO before the emergency leave?

No. Employers may not require employees to use vacation, PTO or other forms of paid leave before using emergency paid sick leave.

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.

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.

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.

What happens to group health plan coverage if employees are not working and unable to pay their share of premiums?

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.

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.

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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.