Our goal during this crisis is to be a stabilizing, informational force, leveraging our resources and connections to best support you during these trying and unprecedented times.
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So much has transpired in the last few weeks that it can be difficult to keep track. This is meant to be a guide to where we currently are with new legislation, regulations and rules. In short:
- Massachusetts employer Unemployment Experience Rating may or may not be affected by COVID claims
- The U.S. Department of Labor (DOL) released regulations and updated its FAQs on the Emergency Paid Sick Leave (EPSL) and Expanded Family Leave (EFML) provided under the Families First Coronavirus Response Act (FFCRA).
- The IRS has published additional resources and a FAQ on how employers are to document EPSL and EFML. These IRS documents also instruct employers on how to apply for the tax credits to reimburse employers for providing those benefits.
- OSHA published its Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic. The guidance discusses alternatives to N95 respirators and the extended use or reuse of N95 respirators. This guidance can be found here
Please bear in mind this remains a fluid and evolving situation. The information provided here does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only.
Massachusetts Unemployment Experience Rating
The CARES Act specifies relief for the federally extended benefits (additional 13 weeks) and the waiting week waiver for Covid-19 related charges as well as the additional $600/week. The states are all figuring out respectively what will be relieved for the first 26 weeks of state UC benefits issued due to Covid-19 related claims.
In Massachusetts the
senate bill no.2618
currently pending with the House Ways and Means committee, proposes that employer’s experience shall not be affected. Absent legislation, employer experience ratings will reflect COVID related charges.
For non-profits, the Federal CARES Act calls for a recommended relief of 50% of charges, but there remains discussion. The states are seeking more guidance there, as the language is very loose, even allowing 50% of relief of all charges not just COVID-19 related. The Massachusetts bill also calls for a 120 day benefit charge payment deadline extension.
Sick Leave/Family Leave Benefits Not Available When Workplace Closed Or Employee Furloughed
An employee is not entitled to EPSL or EFML after the employee has been furloughed or the workplace has been closed (whether pursuant to a government order or lack of business). Employees who are already on one of these paid leaves when they are furloughed or the workplace closes must be paid up to the point of closure or furlough, but not after. Employers can furlough employees who are out on leave, but should be careful to appropriately document the basis for the decision to show the reasons were not discriminatory or retaliatory for taking protected leave.
What Is Telework
Telework is broadly defined and is equivalent to work performed at the employer’s worksite. The regulations explain “that an employee subject to a quarantine or isolation order is able to telework, and therefore may not take paid sick leave, if (a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and (c) there are no extenuating circumstances that prevent the employee from performing that work.”
Using EPSL Where Employee Is Experiencing COVID-19 Symptoms And Seeking Medical Diagnosis
The regulations provide important information about this reason for EPSL stating that “paid sick leave taken for this reason must be limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis. CIP has included Carrier Tel-medicine resources on
Quarantine Or Isolation Orders
An employee may take EPSL if unable to work because they are subject to a Federal, State or local COVID-19 quarantine or isolation order. If the employer does not have work for the employee, then the employee is not eligible for EPSL as they would be unable to work even if they were not required to comply with a quarantine order.
Employee Unable To Work Due To Caring For Individual Subject To Quarantine Or Isolation Order Or Advised To Self-Quarantine
EPSL only applies if the employee would otherwise be able to work for the employer. Additionally, “the employee must have a genuine need to care for the individual.” The individual being cared for must be an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.
EPSL For Employee Needing To Care For Son Or Daughter
Employees may take EPSL because their son’s or daughter’s school or place or care has closed or child care provider is unavailable for COVID-19 related reasons. The regulations clarify that there must have been work for the employee and “the employee needs to, and actually is, caring for his or her child.
Full-Time and Part-Time Employee Defined
The regulations explain that a full-time employee is one regularly scheduled to work at least 40 hours each workweek. For part-time employees, to determine their rate of pay for EPSL the regulations state “Because there are fourteen calendar days over a two-week period, the Department believes Congress intended for the EPSLA to provide part-time employees whose weekly schedule varies with paid sick leave equal to fourteen times the ‘number of hours that the employee was scheduled per [calendar] day,’ averaged over the above-mentioned six-month period. An employer may also use twice the number of hours that an employee was scheduled to work per workweek, averaged over the six-month period.”
Relationship Between FMLA and EFML: 12 Weeks COMBINED
The regulations make clear that employees are entitled to 12 weeks of leave per 12 month measuring period of FMLA and EFML, combined. In using EFML “an employee may elect to use, or an employer may require an employee to use, accrued leave that under the employer’s policies would be available to the employee to care for a child, such as vacation or personal leave or paid time off concurrently with” EFML taken by the employee.
Counting 500 Employees
EPSL and EFML only applies to employers with less than 500 employees. That determination is made at the time an employee would take the leave. In counting to 500, the employer should include full-time and part-time employees, employees on leave, temporary employees who are jointly employed by the employer and another employer, and day laborers supplied by a temporary placement agency. Independent contractors that provide services for an employer do not count towards the 500-employee threshold. Nor do employees count who have been laid off or furloughed and have not subsequently been reemployed. Femployees must be employed within the United States.
Intermittent Leave Requires Employer Agreement
No EPSL or EFML may be taken intermittently absent agreement by the employer. The agreement should include the increments of time in which the leave may be taken. However, for employees physically reporting to work, this leave may be taken intermittently only when used to care for the employee’s son or daughter as described earlier, and then only with the employer’s agreement.
Supplementing EFML Pay
While EFML is paid, the employer can agree to allow accrued paid sick leave or vacation provided under the employer’s policies to supplement the 2/3 EMFL pay so the employee receives their full normal pay. The additional amount, however, is not available for the tax credit reimbursement.
Limited Small Business Exemption
The DOL can exempt small businesses with fewer than 50 employees from the EPSL and EFML requirements when providing the leave would jeopardize the viability of the small business as a going concern. It is important for employers to understand from which parts of the law they can be exempt: (1) paid sick leave due to school closure, place of care closure or child care provider unavailability for COVID-19 related reasons; and (2) emergency paid leave under the Family and Medical Leave Act (FMLA). Paid sick leave taken for other reasons — each of which are outlined in the statute — is not included in this exemption.
In order to qualify for the small business exemption, an authorized officer of the business must determine that at least one of three conditions is satisfied:
- The provision of paid leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee or employees requesting paid leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid leave, and these labor or services are needed for the small business to operate at a minimal capacity.
Employers should document the basis for determining that they meet at least of one the conditions for the exemption. The DOL has not indicated when and if they will examine the claimed exemption of any particular employers.
However, the basis for claiming the exemption should be carefully documented as the DOL could later bring an enforcement action to challenge the exemption. Enforcement actions are currently on hold through April 17, but future enforcement actions could be retroactive to April 1. We strongly recommend attorney review of any such exemption claim.
Meaning Of “Health Care Provider”
The EPSL provisions provide that paid sick leave is available for employees who are advised to self-quarantine by a “health care provider.” For the purposes of this provision, the DOL clarified that “health care provider” means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
All documentation related to EPSL and EFML should be retained for 4 years, whether the requested leave was granted or denied. If the employee provided an oral statement to request the leave, “the employer is required to document and retain such information for four years. If an employer denies an employee’s request for leave pursuant to the small business exemption …, the employer must document its authorized officer’s determination that the prerequisite criteria for that exemption are satisfied and retain such documentation for four years.” The documents to be retained are discussed in the following section.
More Information On EPSL or EFML
The IRS Releases Further Information About FFCRA Tax Credits And Reimbursement
The IRS has published more information about how employers qualify for and claim the refundable tax credits under the FFCRA. This includes an FAQ providing answer to many common questions, including how employers substantiate eligibility for the tax credits. Specifically, an employer needs to receive a request for the time off in writing and the writing must state:
- The employee’s name;
- The date or dates for which leave is requested;
- A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
- A statement that the employee is unable to work, including by means of telework, for such reason.
In the case of a quarantine or self-isolation order, the employee’s written request should include the name of the government entity ordering quarantine or the health care provider advising self-isolation. If requesting time off to care for someone because of such an order, the request should include the name of the person being cared for and their relationship to the employee.
Requests for leave to care for a child must name the school and the child, as well as a statement that no one else will be caring for the child during the leave period.
Interestingly, the IRS substantiation requirements state that if leave is requested to care for a child 14 years or older during daylight hours, the request must include a statement that special circumstances exist requiring the employee to provide care.
Further information about the IRS’s requirements for the FFCRA tax credits
can be found here