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Human Resource Solutions for a Changing World

April 6, 2020

 Week four of the global pandemic saw a number of important developments on the labor and employment front, including release of the U.S. Department of Labor (DOL) regulation to implement emergency paid sick and family leave established under the Families First Coronavirus Response Act (FFCRA) , updated DOL FAQs pertaining to these leaves, Internal Revenue Service (IRS) guidance and forms for employers to obtain advance or end-of-quarter tax credits for the paid leaves, DOL guidance for state workforce agencies to implement unemployment insurance (UI) under the CARES Act , and the Small Business Administration's Interim Final Rule   to implement the Paycheck Protection Program , along with a new application form   (released late on April 2) for employers seeking loans.

To help you manage these latest developments, this e-bulletin will provide important highlights of the new DOL regulation and guidance, links to comprehensive leave of absence forms for employees to request FFCRA emergency paid leaves, and practical tips for managing unemployment claims and costs in the midst of significantly increasing benefits for employees.

As always, our objective is to provide practical, useful recommendations and tips for our clients to address the real-world HR challenges they face daily. We hope you find this e-bulletin helpful.

NOTE: This is the sixth edition in a series of COVID-19 e-bulletins published by Seawright & Associates. If you would like to request prior editions, click HERE. This is a rapidly evolving global pandemic and, as a result, federal regulations,

rules, and guidance, along with our recommendations for employers are subject to change at any time.

Information in this e-bulletin is not intended to be legal, tax, or financial advice; nor is it

intended to provide recommendations for any specific circumstances. 

In our March 30 e-bulletin, we outlined the temporary unemployment programs and benefits that are part of the CARES Act , including, among others, the additional $600 weekly unemployment compensation (UC) benefit for eligible employees. The additional $600 per week is known as Federal Pandemic Unemployment Compensation (FPUC) . With regard to these programs, here are a few important points to keep in mind as you consider how the increased benefits impact your business and any workers you lay off or furlough:

— Effective Date for Additional UC Benefits. Only those states that enter into a voluntary agreement with the DOL’s Employment and Training Administration (ETA) will receive funding for the UI benefits that are temporarily available under the CARES Act. If a state enters into this agreement, it must make the additional UC payments to workers, acting as the DOL’s agent. Workers who apply for UC benefits will not receive the extra $600 per week until their state enters into this agreement . The additional $600 per week is not payable for any week of unemployment ending after July 31, 2020. The $600 weekly unemployment benefit is taxable.

— Delay in UC Payments. Most states are struggling to process the overwhelming volume of claims they have received. As a result, employees are not receiving UC benefits immediately. The delay in receiving benefits will continue until each state can make the staffing and system adjustments necessary to handle the volume. If there is a delay in payment after an initial claim is filed by a worker, the worker will receive the additional $600 weekly benefit retroactive to the date the state entered into the agreement with the DOL.

— UC Benefit Chargeability to Employers. In an April 4 advisory to state workforce agencies, the DOL informed State Workforce Administrators that states may not charge employers for any Federal Pandemic Unemployment Compensation (FPUC) benefits paid, so as to impact the employer’s experience rating. (The FPUC benefits are the additional $600 per week to individuals who collect regular unemployment compensation benefits.) This is excellent news for employers.

— Employee Unemployment Fraud. In an April 2 advisory to state workforce agencies, the DOL reminded State Workforce Administrators that while the CARES Act provides workers some flexibilities, quitting work without good cause to obtain additional UI benefits is fraud and individuals who engage in this fraud are ineligible for any additional benefit payments, must pay back the benefits, and are subject to prosecution under federal law. The DOL reminded State Workforce Administrators that their states must ensure that individuals only receive benefits in accordance with these statutory provisions AND that eligibility decisions are based “solely on the facts of each case and a reasonable application of the state’s UC law to those facts.”

Based on this important reminder, states should not award UC benefits indiscriminately to employees who simply want to stay home in order to receive more compensation than they would from working.

— Employee Eligibility for the Additional $600 UC Benefit.  Individuals will automatically receive FPUC if they are eligible for regular unemployment compensation based on eligibility criteria under state law. Therefore, the only grounds for a state to deny FPUC to an individual is the individual’s ineligibility for regular benefits. For example, if an employee is terminated for misconduct, the employee will not qualify for unemployment benefits, including FPUC.

— Employees Who Voluntarily Quit or Stop Working. States that enter into the agreement with the DOL to provide the expanded unemployment benefits must adhere to the fundamental eligibility requirements of the Federal-State UI program. According to the DOL, these requirements include provisions that individuals (1) are only entitled to benefits if they are no longer working through no fault of their own AND (2) must be able and available to work. 

Being able to work means being physically and mentally capable of performing the duties of the employee’s occupation. Being available for work means actively seeking and being ready and willing to accept suitable work.

In some cases, employees who voluntarily quit with good cause are eligible for benefits. Generally, for good cause to exist, former employees must show that the circumstances at work were SO bad that they had no choice but to leave, even though the employee did everything he or she could to get the employer to solve the problem. 

Let’s apply these principles to the

current unemployment environment:

— An employee who stops working out of a generalized fear of COVID-19 (unrelated to an elevated workplace risk) even though work is available AND/OR who voluntarily chooses to self-quarantine (not based on a health care provider’s advice) should not qualify for unemployment benefits because he or she voluntarily withdrew from the labor market (is not available to work).

— Employees who refuse an offer of suitable work are not eligible for unemployment benefits. This includes employees who are recalled after a layoff or furlough and who reject the offer to return to work because they prefer to stay home and collect FPUC.

— If an employee reports that he or she does not want to work due to a generalized fear of COVID-19 (unrelated to any medical condition, reason under the Emergency Paid Sick Leave Act [EPSLA] or Emergency Family & Medical Leave Expansion Act [EFMLEA] , elevated age, or government-issued stay-at-home or quarantine order specific to the employee or a group of citizens the employee is part of) AND he or she does not qualify for emergency paid sick leave or paid family leave, the employee can be placed on an unpaid leave of absence OR can be told that his or her voluntary resignation will be processed if he or she refuses to report to work. (The resignation option should only be used if the employee does not qualify for emergency paid sick or family leave and is not part of a protected class that would warrant granting an unpaid leave as a reasonable accommodation.)

If the employee is placed on a leave of absence, he or she may be eligible for unemployment in accordance with state UC law and policies. An employee who voluntarily resigns without good cause is not eligible for unemployment benefits. In the situation described, the state unemployment agency will assess whether or not there was good cause for the employee to refuse to report to work. To meet this burden of proof, employers should ensure that the request to stay home is unrelated to a medical condition, elevated age, reason under the EPSLA or EFMLEA, or a government-issued stay-at-home or quarantine order specific to the employee or group of citizens the employee is part of. If one of these scenarios apply, the unemployment agency could rule that the employee quit for good cause.

Employers that choose to accept an employee’s resignation under the circumstances described should apply this practice consistently among employees and should take all necessary steps to fully process the separation (e.g., extend COBRA if the employee elected group health benefits and the company is covered under COBRA), so there is no question that the employee was separated and not placed on a leave.

Prior to separating employees under these circumstances, employers who have applied for or received loans under the Paycheck Protection Program should consider how the reduction in headcount will impact the level of loan forgiveness.

If your state awards UC benefits in any of the above circumstances, we recommend that you appeal the claim based on the fundamental eligibility requirements of the Federal-State UI program. 

For information about your state’s unemployment insurance program and how the CARES Act is being implemented, click HERE .

For a list of qualifying events under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family

& Medical Leave Expansion Act (EFMLEA) , refer to our March 19 e-bulletin. For information

about employer obligations under these Acts, refer to our March 30 e-bulletin.

On April 1, the U.S. Department of Labor (DOL) released its regulation for implementing emergency paid sick leave and family leave under the EPSLA and EFMLEA, found in the Families First Coronavirus Response Act (FFCRA). The regulation, Paid Leave Under the Families First Coronavirus Response Act , constitutes a “Temporary Rule” in the DOL world because it is only effective from April 1, 2020 through December 31, 2020, when the EPSLA and EFMLEA expire. The rule was published in the Federal Register this morning and is now in effect.

In addition to releasing the 120-page rule, the DOL also updated its FAQ document for employers several times. The latest version can be found HERE .

The new regulation outlines employer obligations and compliance requirements for both paid leaves. The latest FAQ document provides additional insight into DOL enforcement practices.

Here are the key NEW points (not previously addressed by DOL)

from both documents that employers need to know:

 

— EPSLA Reason #1: Employee Is Subject to a Quarantine or Isolation Order. Employees may take paid sick leave only if being subject to a governmental quarantine or isolation order (such as a shelter-in-place or stay-at-home order) that prevents the employee from working or teleworking. For example:

       

— EPSLA Reason #2: Employee Advised by a Health Care Provider to Self-Quarantine.  The advice to self-quarantine must be based on the health care provider’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19. In addition, self-quarantining must prevent the employee from working. An employees who is advised by a health care provider to self-quarantine is not eligible for emergency paid sick leave if: (a) the employer has work for the employee to perform, (b) the employer permits the employee to perform work from the location where the employee is quarantined or isolated, and (c) there are no extenuating circumstances, such as serious COVID-19 symptoms , that prevent the employee from performing the work.

For the purpose of this paid sick leave option, the term “health care provider” means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for the purposes of FMLA. (This is a broad definition; clients should call our office with any questions about eligible health care providers.)

— EPSLA Reason #3: Employee Is Experiencing Symptoms of COVID-19 and Is Seeking a Medical Diagnosis. An employee is eligible for emergency paid sick leave if he or she is experiencing ANY of the following: fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the CDC AND the employee is seeking a medical diagnosis. Under this leave reason, the following provisions apply:

Employees who do not exhibit any of the symptoms of COVID-19 noted above and those who exhibit any of the symptoms but do not seek a medical diagnosis are not eligible for emergency paid sick leave under this reason.

— EPSLA Reason #4: Employee Needs to Care for an Individual Who Is Subject to a Quarantine or Isolation Order or Who Has Been Advised by a Health Care Provider to Self-Quarantine. The same provisions noted above for Reasons #1 and #2 apply to the individual whom the employee requests leave to care for. To qualify for leave under this reason, the employee must have a genuine need to care for the individual AND the individual must be someone with whom the employee has a personal relationship . This includes an immediate family member, a person who regularly resides in the employee’s home, a 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.

— EPSLA Reason #5 & EFMLEA Leave : Employee Is Needed to Care for a Son or Daughter . Both the EPSLA and EFMLEA provide for paid leave to employees who need to care for a son or daughter whose school or place of care has closed, or the child care provider is unavailable, due to COVID-19 related reasons. With regard to leave for these reasons:

 

 

 

Based on the definitions for child care provider and places of care , once the school year ends, an employee who is out of work due to paid sick leave Reason #5 or paid family leave will continue to qualify for the paid leave if the child’s babysitter or family member who regularly cares for the child is unavailable or if the child’s summer camp or enrichment program remains closed due to COVID-19.

— EPSLA Reason #6: Other Substantially Similar Conditions. An employee is eligible for emergency paid sick leave if the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services (HHS) in consultation with the Secretary of the Treasury and the Secretary of Labor. Currently, no such conditions have been identified by the HHS Secretary, so employees are not eligible for paid sick leave under this reason.

— Telework and Continuous Workday Rule. In keeping with Fair Labor Standards Act (FLSA) provisions, employees holding nonexempt positions who work from home for COVID-19 related reasons must record and be compensated for all hours actually worked, including overtime. Employers are not required to compensate employees for unreported hours worked while teleworking for COVID-19 related reasons, unless the employer knew or should have known about such telework.

Consistent with Congress’ intent for the FFCRA, the DOL encourages employers to implement “highly flexible telework arrangements that allow employees to perform work, potentially at unconventional times, while tending to family and other responsibilities, such as teaching children whose schools are closed for COVID-19 related reasons.” This can result in remote workers starting and stopping work several times throughout the day.

Under the FLSA continuous work rule, all time between the first and last principal activity is compensable work time; however, in keeping with the DOL’s desire to promote highly flexible telework arrangements during the pandemic, it will not apply the FLSA continuous workday rule to employees who telework for COVID-19 related reasons. This means that employers are not obligated to pay employees who telework for COVID-19 related reasons for time spent tending to personal matters when it is necessary for the employee to take this time between periods of work on the same day.

— Paid Sick Leave for Variable-Schedule Part-Time Employees. The DOL provided a new formula for calculating the amount of paid sick leave for part-time employees whose weekly schedule varies. Such employees must receive an amount of paid sick leave equal to 14 times the number of hours that the employee was scheduled per calendar day, averaged over the 6-month period ending on the date on which the employee takes paid sick leave. As an alternative, an employer may also use twice the number of hours that the employee was scheduled to work per workweek, averaged over the 6-month period.

For the purpose of emergency paid sick leave, a full-time employee is an employee who is normally scheduled to work at least 40 hours each workweek. A part-time employee is an employee who is normally scheduled to work fewer than 40 hours each workweek.

— Period of Unpaid EFMLEA. The EFMLEA states that the first 10 days of family leave can be unpaid and the remaining time (10 weeks) must be paid at a rate not less than 2/3 the employee’s regular rate of pay. The DOL believes that Congress used “the first 10 days” as the period of unpaid family leave to coincide with the 10 days of paid sick leave under the EPSLA, which can be taken concurrently for the same reason. However, a 10-day calculation does not compute for an employee who works unconventional hours. To correct the disparity, the DOL regulation clarifies that the unpaid period for expanded family and medical leave lasts for two weeks rather than 10 days.

— Supplementing the 2/3 Pay for Leave Under EFMLEA. Notwithstanding the cap on the amount of paid family leave that is available for a tax credit, when paid leave is taken to care for a child under the EFMLEA, employees may elect to use, or employers may require employees to take , this leave concurrently with any company policies that would otherwise be available to the employee to care for a child (such as vacation or personal leave or paid time off), unless this is prohibited under an applicable state law. When company leave is taken concurrently with paid family leave under the EFMLEA, the employer must pay the employee a full day’s pay for that day (thereby supplementing the employee’s pay for the 1/3 that is unpaid under the EFMLEA).

[ Note: Employers can allow employees to supplement leave under the EPSLA that is paid at 2/3 the regular rate with paid leave available under existing company policies; however, this cannot be required.]

— Exemption From Providing Paid Leaves for Child Care. Employers with fewer than 50 employees may be exempt from the emergency paid sick and paid family leave requirements related to school closings or child care unavailability when granting the leave would jeopardize the ability of the business to continue. 

Our March 30 e-bulletin outlined three conditions—at least one of which must be met—to satisfy the DOL’s standard for denying child care leave. The new regulation clarified that an employer can deny paid sick or paid family leave only to those otherwise eligible employees whose absence would cause the condition to occur . In other words, the conditions must be evaluated in light of each individual employee who requests leave for child care purposes and, if one of the conditions applies, the leave can be denied to that employee only . In these cases, the employer must document the facts and circumstances that meet the criteria to justify denial of the leave.

— Intermittent Leave.  Absent a clear and mutual understanding or written agreement between an employee and his or her employer, an employee may not take emergency paid sick or paid family leave intermittently. An employee who works at the employer’s worksite is not permitted to take emergency paid sick leave intermittently for Reasons #1–#4 and Reason #6 under any circumstances due to the unacceptably high risk that the employee might spread COVID-19 to other employees when reporting to work. This means that employees who are not working remotely who take paid sick leave must continue to take paid sick leave each day until the full amount is exhausted or the employee no longer has a qualifying reason to take paid sick leave.

— Layoffs During Paid Sick or Paid Family Leave. Employees are not protected from employment actions, such as layoffs or furloughs, that would have affected the employee regardless of whether the leave was taken. Employers must be able to demonstrate that the employee would have been laid off or furloughed even if he or she had not taken leave.

— Employee Entitlement to Paid Sick and Family Leave. Emergency paid sick and family leave must be provided in addition to, and not a substitute for, other sources of leave that the employee has accrued, was already eligible for, or had already used before the EPSLA and EFMLEA became effective on April 1. In addition, employees cannot be coerced or unduly influenced to use another source of paid leave before taking paid sick or paid family leave.

— Documentation for Leaves. An employee MUST provide documentation to support emergency paid sick or paid family leave. This documentation must include all of the following information:

Employers can request employees to provide additional materials necessary to support a request for tax credits related to paid sick and paid family leave. Employers are not required to provide leave to employees who fail to provide materials sufficient to support the applicable tax credit.

In accordance with IRS provisions, employers can require employees who request paid sick or paid family leave to provide the following additional information for tax credit purposes:

All documentation must be retained for four years, regardless of whether leave is granted or denied. Employers who accept oral statements from employees must document the information provided by the employee and must maintain the documentation for four years.

CLIENT BONUS!

Comprehensive Leave Request Forms for Employers

Given that there are several types of temporary emergency leaves available, we recommend that employers use comprehensive leave request forms that include all the pertinent requirements for each type of leave. Knowing the burden that this creates on employers, we have developed two special COVID-19 Leave Request Forms for our clients. Click HERE to obtain the Emergency Sick Leave Request Form and HERE to obtain the Emergency Family Leave Request Form.

Documentation Necessary for IRS Paid Leave Tax Credits

On April 1, the IRS released a comprehensive FAQ document addressing the method for obtaining refundable tax credits to cover the cost of qualified paid sick and family leave wages provided to employees under the FFCRA. Employers can take these tax credits at the time they file their quarterly federal employment tax returns (Form 941), or in accordance with the CARES Act they can file a request for an advance payment from the IRS.

To substantiate eligibility for sick leave or family leave tax credits, in addition to the documentation required by the DOL and IRS for an employee taking paid sick or paid family leave, the IRS requires employers to obtain and maintain the following:

For more details about IRS rules and procedures for obtaining refundable tax credits under the FFCRA, employers should review the IRS FAQ document available HERE and consult with their CPA or accountant.

As a client of our firm, if you have questions about HR practices or solutions, state or federal employment regulations, or any other HR need, call or email our office for assistance.

Seawright & Associates

(407) 645-2433

[email protected]

seawright.com

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The information in this bulletin and in any attachments is for general purposes only. Please speak with a Seawright & Associates consultant about your specific needs before taking any action. Seawright & Associates does not engage in the practice of law. Information in this bulletin is not intended to be legal advice. Should you wish to have a legal opinion, we recommend that you speak with a qualified attorney.