COVID-19 FAQS For Business

Although the FFCRA provides covered employees with job protected leave and requires employers to return employees to the same or equivalent position under existing FMLA rules, an employer may, for legitimate business reasons, lay off and/or terminate employees while they are on leave. Response to question 43. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Generally, if you employ fewer than 500 employees you are a covered employer that must provide paid sick leave and expanded family and medical leave. Certain employers with fewer than 50 employees may be exempt from the Act’s requirements to provide certain paid sick leave and expanded family and medical leave. For additional information regarding the 500 employee threshold or the small business exemption, see the DOL Q&A.  See the response to question 2 at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

You should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.  See the response to question 2 at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

The DOL has clarified that employees who are unable to work and/or are laid off in response to a stay at home order, are not entitled to PSL (or extended FMLA) under the FFCRA. Responses to questions 23 and 27.  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Yes, but only if the employer and employee both agree and one of the following applies: (1) the reason is for care of a child whose school or place of care is closed, or (2) the employee is teleworking and is unable to work their normal schedule of hours.

See response to questions 20 and 21 at:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Under DOL Guidance, an employer may require documentation in support of an employee’s PSL as specified in applicable IRS forms, instructions, and information.  See response to question 16 for more details at:https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

An employee who refuses to telework would not be eligible for PSL unless he/she is unable to perform required tasks or work required hours because of one of the qualifying reasons for PSL. See response to question 19 at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

There is no DOL Guidance that suggests that PSL eligibility has anything to do with the availability of an employee’s partner or spouse.

Yes, leave can be used intermittently to care for a child whose childcare is closed but only if the employer agrees. See response to question 22 at:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons.

The EFMLA and EPSL both cover caring for children whose school or place of care is closed due to COVID-19 precautions, though EFMLA has the broader restriction that the child be under 18 years old. The leaves can run concurrently with the first 10 work days of EFMLA being unpaid, which will, in many cases, coincide with the 80 hours of pay (at ⅔ the regular rate) under EPSL for full-time employees.  See response to question 31 at:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

An employee who refuses to telework is not eligible for extended FMLA unless the employee is unable to perform teleworking tasks or work the required teleworking hours because he/she needs to care for a child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons. See response to question 19 at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

The only eligible family members are a mother or father, stepparent, foster parent or a person standing in loco parentis for a child under the age of 18 (or who is 18 or over and has a mental or physical disability, which renders him/her incapable of self-care) for whom they  have day-to-day responsibilities to care for or financially support. Response to question 40 at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

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 childcare provider. See response to question 15 at:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Yes. The Department of Labor makes it clear in an FAQ regarding the FFCRA that leaves under the FFCRA are intended to be in addition to any preexisting leave entitlements that an employee may have.  See response to question 32 at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Official resources about the tax credits can be found at: https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs

Additionally, CTR conducted two webinars regarding applying the FFCRA tax credits in our software application.  The webinars and PowerPoint presentations can be found on our COVID-19 page under Past Webinars.

There is no specific guidance yet from the DOL concerning the application of expanded FMLA where both parents work.  Presumably, both parents would be eligible for the benefits. There is no recommended certification. Instead the DOL Guidance recommends that a parent produce 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 childcare provider. See response to question 15 at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions 

If you are an eligible employee, you are entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave you have taken under the FMLA.

However, if your employer was covered by the FMLA prior to April 1, 2020, your eligibility for expanded family and medical leave depends on how much leave you have already taken during the 12-month period that your employer uses for FMLA leave. You may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If you have taken some, but not all, 12 workweeks of your leave under FMLA during the current 12-month period determined by your employer, you may take the remaining portion of leave available. If you have already taken 12 workweeks of FMLA leave during this 12-month period, you may not take additional expanded family and medical leave.  See response to question 44 at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Since the FFCRA requires that an employee be restored to the same or an equivalent position, and an employee would remain employed during his/her leave under the FFCRA, an employee’s service should not be affected.  An employee may or may not accrue seniority during his/her leave depending upon employer policies and whether the employee is covered by a collective bargaining agreement.

This is a very good question. Although the language in FFCA is ambiguous, the recent DOL guidance makes clear this provision only applies to personal and not blanket lockdowns/quarantines.

A non-exempt employee’s salary can be adjusted based on the employee’s hours worked.  However, an exempt employee would be entitled to receive an entire week of salary.

Yes, it is important that you continue running payroll so we can ensure reporting and taxes are correct

A shut down generally triggers an employer’s obligation to notify employees about their COBRA rights.  However, employers should consult their medical plans and their carrier to determine whether employees may remain on an employer’s group plan for a period of time because of the current crisis.

We recently conducted a webinar related to the question which can be found here:COVID-19: COBRA, ACA, and Benefits Q&A

It is best to err on the side of being employee-friendly because the intent of the FFCRA is to give paid sick time to employees to give employers tax credits to pay for it. It is fair to require a doctor’s note but be aware that during a pandemic medical providers may be overwhelmed an unable to quickly respond to such a request. If requiring a doctor’s note is not feasible, then requiring the employee to stay away from work for a specified period of time would be deemed appropriate.

Yes. Such inquiries are permitted under the ADA either because they are not disability-related or they are justified under the ADA standards for disability-related inquiries of employees.

As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.  Please see more detail at: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

No, this does not happen automatically. Typically, the employee needs to ask for the FMLA and then the earning code needs to be applied in iSolved.

Absolutely. This is under our Additional Resources on our COVID-19 Info Center: https://ctrhcm.com/covid-19-information-center/

Yes. The Centers for Disease Control and Prevention (CDC) has advised employers that employees who appear to have symptoms of COVID-19 (e.g., cough, shortness of breath) should be separated from other employees and sent home immediately. If the employee feels well enough to work, consider whether they can effectively telecommute.

Although some employers will be comfortable sending everyone home with their laptop and saying, go forth and be productive, most will want to be a little more specific. A good telecommuting policy will generally address productivity standards, hours of work, how and when employees should be in contact with their manager or subordinates, and office expenses. • For instance, your policy might require that employees are available by phone and messaging app during their regular in-office hours, that they meet all deadlines and maintain client contacts per usual, and that they check in with their manager at the close of each workday to report what they have accomplished. Be sure to let employees know whom to contact if they run into technical difficulties at home.

The CDC and EEOC are stating that yes, you can take temperatures and ask about employee health upon arrival during this pandemic. However, be certain you are only asking if the employee is experiencing any COVID-19 symptoms and nothing else.

Immediately notify affected employees. See next question.

• Determine if the office location(s) need to be closed for cleaning, and if so, for how long. Communicate these measures to employees still reporting to the physical location. If cleaning to be conducted by staff, refer to the CDC guidelines. Preferably, contact a professional cleaning company with expertise in this area.
• Notify immediate manager(s) that their direct report is on a leave of absence for a nondisciplinary reason.
• Determine if exposure may have been work-related and potentially qualifying as a workers’ compensation claim. If work-related, record as appropriate on the OSHA log and contact your worker’s compensation provider.

Immediately contact any of these individuals including coworkers, vendors, customers and third party business associates who may have been in close contact with the COVID-19 positive employee, without sharing the person’s identity. Employers are not permitted to disclose the name of the affected employee and must adhere to HIPAA guidelines at all times.

• Uniformly communicate with each employee that someone in the organization has tested positive for COVID-19, and that they been identified as someone having close contact with this individual, as defined by the CDC. Refer to the latest guidance from the CDC regarding length of time these employees should self-isolate at home. (The fastest method of communication would be by phone).
• Direct employees to their physician or healthcare provider for any medical questions. Do not provide any medical guidance or speculation on the situation.
• Follow-up with affected employee(s) via phone or email on a weekly basis to express support.

We recommend that you pay them for the time and not take it from their sick leave or PTO bank. You face the risk of a discrimination or wage and hour claim.

Remember that you don’t pay unemployment insurance (UI) claims directly. They are paid by the state, and the state gets funds for that from unemployment insurance taxes that employers pay into regularly. Some employers are concerned that their UI tax rate will increase due to current layoffs, but it appears that many states (perhaps all) will essentially be forgiving COVID-19-related terminations with respect to future increases in UI tax rates. • Most employees who experience reduced hours, furloughs, or layoffs will be eligible for at least some unemployment insurance. Employees should be encouraged to file as soon as possible and to research rules, benefits, and options themselves to ensure they get the best benefit possible.

No. Employers are temporarily able to inspect documents virtually (e.g., over video link, fax or email, etc.). Employers should be sure to note COVID-19 as the reason for physical inspection delay. Once normal business operations resume, employers should also note the date the physical inspection took place. See the Temporary I-9 Guidelines During the COVID-19 Pandemic Handout for specific details. Completion of the Form I-9 is still required within 3 business days of hire.

The core business functions cannot be forgotten. Almost every company will still need to manage the core functions of:

• Sales
• Operations
• Administration
• Assign duties to employees and managers to ensure the business remains a going concern.