Employer COVID-19 Guidelines Update (Expired Dec. 31, 2020)

Employer COVID-19 Guidelines Update NEW UPDATE: These Employer Guidelines Expired Dec. 31, 2020

As the COVID-19 Coronavirus continues to change the way we live and do business, we are providing the following information to help navigate through some of the questions that employers may have regarding employee pay and benefits.

Fair Labor Standards Act (FLSA)

• These are minimum requirements under the Fair Labor Standards Act (FLSA). Some employers may choose to do more than the minimum requirements. This section is intended to address work closures or telework, not employees who are sick, quarantined under a health-care provider’s order, or caring for a family member who is sick.
  • Hourly employees who work a full or partial week must be paid for all hours worked, whether at the employer’s location or at home.
  • Exempt (salaried) employees who work any part of a week must be paid for the entire week. The employer may require the employee to take accrued leave (vacation, PTO, etc.) or to debit their leave bank for any part of the week that the employee does not work. Exempt employees are not required to be paid their salaries in any week in which they perform no work.
  • Employees (exempt or non-exempt) may be directed by their employer to perform work outside of their normal job description unless there is a policy or contract in place that specifies otherwise. Normal restrictions for youth under the age of eighteen still apply.
  • An employer may encourage or require an employee to telework as an alternative to reporting to the workplace. Employees may not be singled out for telework or continuing to report to work based on any type of discrimination covered under employment laws.
  • Hourly employees who telework may be paid reduced wages (no less than minimum wage) unless they are covered under a union contract or if the telework is allowed under an ADA reasonable accommodation. Salaried employees must be paid at their normal rate.

Unemployment Insurance

• Unemployment insurance is available to employees who are out of work or whose hours are drastically reduced because of the COVID-19 virus. Your employees will not be able to go to a physical location, but they may apply online or by telephone. Anyone for whom you pay unemployment insurance (a portion of your payroll taxes) is eligible. Eligibility amounts are based upon the usual calculations.

Families First Coronavirus Response Act

The Families First Coronavirus Response Act that was signed into law by President Trump will be effective April 2, 2020 and expires on December 31, 2020. This law covers employers with fewer than 500 employees. Businesses with more than 500 employees are exempt, and those with fewer than 50 employees may be able to make use of a hardship exemption if complying with the law will jeopardize their ability to stay in business.

This law has three parts that will affect employers:

Paid Family and Medical Leave

• Paid Family and Medical Leave
  • Employees of covered employers who have been employed at least 30 days are eligible for up to 12 weeks of job-protected leave if they are unable to work or telework due to having to care for the employees’ child, if the child’s school or child care facility is closed, or their care provider is unavailable due to a public health emergency.
  • The first ten days of FMLA are unpaid. During this time employees may use any leave available to them through their employer (vacation, PTO, etc.).
  • After the first ten days, full-time employees must be paid at two-thirds their regular rate for any hours the employee would normally have been scheduled. Part-time employees should be paid at two-thirds their regular rate for the average number of hours worked during the previous six months.
  • There are maximum pay caps of $200/day and $10,000 total per employee.
  • Employers with between 25 and 500 employees are required to return the employee to the same/equivalent position as per traditional FMLA. Employers with fewer than 25 are exempt from this requirement if the employees position no longer exists due to an economic turndown or to the public health emergency. The employer must make reasonable attempts to return the employee to work for up to a year following the employee’s leave.

Paid Sick Leave

• Paid Sick Leave
  • Under the paid sick leave provision there is no minimum length of employment requirement. Full-time employees must be provided with 80 hours of paid sick leave for any of the qualifying reasons, and part-time employees must paid based on the average of hours worked during the previous six months.

• Employees are entitled to sick leave for the following qualifying reasons at their regular rate of pay:
  • A federal, state or local quarantine or isolation related to COVID-19;
  • Advised by a health-care provider to self-quarantine because of COVID-19 concerns;
  • Experiencing COVID-19 symptoms and seeking medical diagnosis.
  • This leave is capped at $511/day/employee or $5,110/employee.
• Employees are entitled to sick leave for the following reasons at two-thirds their regular rate of pay:
  • Caring for an individual subject to a federal, state or local quarantine or isolation or who is advised by a healthcare provider to self-quarantine related to COVID-19 concerns;
  • Caring for the employee’s child if the child’s school or childcare facility is closed or unavailable due to COVID-19;
  • Experiencing any other similar condition specified by the Secretary of Health and Human Services, Secretary of the Treasury and Secretary of Labor.
  • This leave is capped at $200/day/employee or $2000/employee.
• An employee may use paid sick time under this Act (for covered reasons) before using regular employer-provided leave. An employer may not require employees to use other employer-provided leave before using sick time under this Act, nor may they discharge, discipline or discriminate against an employee who uses such leave.

Tax Credits

• Tax Credits – Employers are eligible for tax credits for providing paid family medical leave and paid sick leave. This will be credited against the employer’s portion of Social Security wages. The refundable tax credit it equal to 100% of the qualified wages paid by the employer each quarter (subject to the caps mentioned above.)

There are several unknowns at this time. For example, there is no guidance as to how employers with fewer than 50 employees should apply for a hardship exemption. Additionally, it does not appear that intermittent FMLA leave was addressed under this law. We expect further guidance on these and other questions that will arise from the Department of Labor over the next few weeks.

This is an unprecedented, fluid situation, and we will attempt to keep you updated as things change or become more clarified. If you have further questions or we can assist you in any way through this process, do not hesitate to contact us.