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Coronavirus Resources for Employers

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Covid-19 Resources for Employers
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What Are Other Businesses Doing?

Across our client base and discussions with industry leaders in the Mid-Atlantic, we are seeing the following industry trends.

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How will COVID-19 affect compensation strategies?

The reality is that COVID-19 has slowed or halted many industries.

Data compiled by Payfactors shows 6% of organizations are seeing greater than 10% wage reductions due to adjustments for COVID-19. To minimize this impact on employees, 66% of employers are offering 2-weeks of emergency shutdown pay for workers who are not able to telecommute due to the nature of their job.

Many organizations have no choice but to continue operations. These businesses cannot be conducted remotely and are often vital to the safety and productivity of our societies.

How is the FFCRA law applicable for companies/employees who were teleworking prior to the COVID19 pandemic?

Employers are not exempt from the law if employees regularly telework as part of their employment relationship prior to COVID-19 and this expanded law. Employees who telework for a covered employer are eligible to apply for newly expanded FMLA. However, it’s possible that being provided the option to telework may help prevent absences requiring leave under this newly amended section of FMLA.

Emergency paid leave is intended for employees who are not working for qualifying reasons. If an employee is teleworking, and not experiencing a loss of work, hours, etc. for qualifying reasons, paid leave is not payable.

What documentation needs to be collected by the employer for employees who want to utilize either the Emergency Sick Leave or FMLA for COVID-19?

We are still awaiting guidance from the DOL around documentation requirements associated with Emergency Sick Leave. The recommendation as of 3/23/2020 is to treat documentation requirements for Emergency Sick Leave identical to the requirements of standard FMLA. For FMLA requests associated with the FFCRA, you should utilize the FMLA documentation process/forms that are currently in place. Employers should establish separate leave codes to distinguish between the FFCRA FMLA leave and other FMLA leave.

Documentation/Verification for Directly Impacted Employee:

  • Verifying that a Federal, State or local quarantine or isolation order related to COVID-19 is in place is simple, as it impacts entire states, localities etc. You can use a record of government notice for documentation purposes (i.e. from the government website).
  • If an employee has been advised by a health care provider to self-quarantine related to COVID-19, they will be able to provide a note, however, delaying payment pending a note is not recommended. Guidance to employers is to be mindful that medical professionals are inundated with COVID-19 cases and the timeline for them to turnaround medical documentation may be delayed. Liberally granting leave is being recommended by labor law attorneys.
  • If an employee reports they are experiencing COVID-19 symptoms and in the process of seeking a medical diagnosis, the employee is eligible for paid leave. Delaying payment due to a lack of documentation is not recommended. Guidance to employers is to be mindful that medical professionals are inundated with COVID-19 cases and the timeline for them to turnaround medical documentation may be delayed. Liberally granting leave is being recommended by labor law attorneys.
  • If an employee is experiencing a substantially similar condition that has been specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury, the employee can provide a treating provider note excusing them from work. Delaying payment due to a lack of documentation is not recommended.

Documentation/Verification if Caring for a Family Member:

  • If an employee is caring for an individual subject to a Federal, State, or local quarantine or isolation order related to COVID-19 this is easily verified as it impacts entire states, localities, etc. You can use a record of government notice for documentation purposes (i.e. from the government website).
  • If an employee is caring for an individual who has been advised by a health care provider to self-quarantine related to COVID-19, they will be able to provide a note. Delaying payment due to a lack of documentation is not recommended. Guidance to employers is to be mindful that medical professionals are inundated with COVID-19 cases and the timeline for them to turnaround medical documentation may be delayed. Liberally granting leave is being recommended by labor law attorneys.
  • Lastly, if an employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; a visit to the school website or evidence of a communication from a child care or care provider should suffice; however, delaying payment is not recommended. Liberally granting leave is being recommended by labor law attorneys.

Will employees be able to accrue PTO during the time we cut back hours and potentially furlough or lay off?

The FFCRA does not require that accruals continue when employees are on leave. In general, there is no requirement and employers are not obligated to continue accruals during a work stoppage. We recommend reviewing your PTO/Vacation policies. Do they account for part-time eligibility or leave periods, and if so, how does that affect their accrual rates?

If our current PTO policy provides all employees more than 80 hours of PTO, are we already in compliance with the 80 hours of the FFCRA Emergency Sick Leave or does the law stipulate 80 additional hours?

Existing accrued and unused PTO, vacation and sick leave programs/balances do not offset the FFCRA Emergency Sick Leave requirement or allotment. The law clearly stipulates this leave is in addition to any current leave programs offered. Also, employers may not require employees to use other paid leave provided by the employer before the employee uses paid sick leave under the FFCRA Emergency Paid Sick Leave requirement.

Effective April 1, 2020, this Act allows an eligible employee to take paid sick leave because the employee is:

  1. Subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. Advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. Experiencing COVID-19 symptoms and seeking medical diagnosis;
  4. Caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
  5. Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency, or
  6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Eligibility

This Act requires employers with fewer than 500 employees to provide full-time employees (regardless of the employee’s duration of employment prior to leave) with 80 hours of paid sick leave at the employee’s regular rate (or two-thirds the employee’s regular rate to care for qualifying reasons 4, 5, or 6 listed above).

Cap on Paid Sick Leave Wages

This Act places limits on paid sick leave. Specifically, paid sick leave wages are limited to $511 per day up to $5,110 total per employee for their own use and to $200 per day up to $2,000 total to care for others and any other substantially similar condition.

Can an employee use sick/safe leave (for Montgomery County MD and DC) they have already accrued?

Be advised the Emergency Paid Sick Leave provided by the FFCRA is in addition to the sick leave awarded to employees by any additional state/county laws. The guidance to receive tax credits indicates the sick leave used as part of the FFCRA must be tracked separately in order to receive the tax credits.

With that, yes, employees can use their accrued sick leave provided by the state in which they are working assuming the reason for their leave complies with the eligibility requirements of the state specific leave. The Maryland Healthy Working Families Act requires employers with 15 or more employees to provide paid sick and safe leave and employers who employ 14 or fewer employees provide unpaid sick and safe leave for certain employees. If an employer has a paid time off policy that provides for paid time off in an amount equal to or greater than the leave that an employee would otherwise be entitled to under the Maryland Sick and Safe law, the employer does not need to provide additional leave. If an employer “front-loads” the earned sick and safe leave, the employer is not required to allow the employee to carry over the leave. If an employer provides more leave than is otherwise required by the MD law, the employee must have at least 40 hours of that leave available for immediate use at the beginning of the year. As it relates to D.C. Universal Paid Leave Act (UPL): Employers may provide employees with leave benefits in addition to those provided by DC-UPL. If an eligible individual is receiving unemployment insurance or long-term disability payments, he or she is not eligible to receive benefits under the act.

Can an employee cancel their health insurance because the impact of COVID-19 resulted in a reduction of their working hours or salary?

Generally speaking, benefits eligibility may cease under certain changes in circumstances (often driven by the employment relationship/status; layoff, furlough, reduction in hours, temporary leave of absence; or termination); additionally, employees may make benefit enrollment changes based on IRS defined qualifying life events. We are seeing some health insurance carriers making changes to the plans (including eligibility to make changes to enrollments) in response to the pandemic. Keep in mind, a reduction in hours for employees may affect their ACA Full-time (FT) Status Stability Period.

The ACA Stability Period is calculated in one of two ways:

  1. Monthly method of calculating the hours worked for that month at the end of the month (must work 130 hours)
  2. Variable hour method of utilizing a 12-month lookback period for a total of at least 1,560 hours worked Generally, a temporary shift to part-time hours will not jeopardize the ACA status if the variable hour method is in place.

If we put employees on unemployment can we still pay their healthcare premium and how long?

Employers do not have the ability to determine if an individual can collect unemployment; the employee can apply for unemployment if their wages/hours available for work are impacted and the state determines their eligibility for unemployment. If an employee applies for unemployment due to reduced hours or furlough, an employer can maintain their insurance coverage. The employer would continue to pay the employer portion of benefit premiums and the employees would remain responsible for paying their share of premium payments. We recommend you reach out to your broker/carrier to ensure compliance with your plan documents to ensure how an employee’s classification (active, LWOP, terminated) affects eligibility for remaining on the benefits plan.

If an employee is taking care of a child or family member due to COVID-related closures eligible to take FMLA leave?

Eligibility for leave under the Emergency Family and Medical Leave Expansion Act:

Employees working at least 30 days for a covered employer are eligible to use Family Medical Leave FMLA, if the need for leave is due to the amended Leave requirement section, which now includes Public Health Emergency Leave, which states: “During the period beginning on the date the Emergency Family and Medical Leave Expansion Act takes effect, and ending on December 31, 2020, because of a qualifying need related to a public health emergency....”.

If an employee is unable to work (or telework) because they must care for a child under 18 years of age, because the school or place of care is closed, or the child care provider is unavailable, due to a public health emergency, that employee is eligible for the paid and unpaid FMLA leave.

Can we call the doctor's office to verify an employee has been told to self-isolate?

No, and physicians cannot release medical information to employers without the permission of the employee. Employers can request that an employee obtain a note from their treating provider.

Let's Get Through This Together

This circumstance we are all experiencing isn't normal. However, we can lead through this new normal together and keep your business moving forward for the future. Please note, as of March 10th, Helios made the decision to operate in a virtual capacity during the COVID-19 pandemic to keep our employees, their families, and our clients safe.

DISCLAIMER: This content is intended to provide general guidance and informational resources for Helios HR clients and business partners, it is not legal or financial advice. Helios HR disclaims any liability for the accuracy, legality or content of the external sites. For guidance specific to your business, please reach out to your dedicated Helios HR Consultant(s).