FFCRA originally required employers with fewer than 500 employees to provide employees with 2 weeks of Emergency Paid Sick Leave (EPSL) and up to 12 weeks Emergency Family and Medical Leave (EFML) (if employees satisfied one of the reasons set forth under FFCRA. For a complete review of FFCRA leaves and requirements, see Lake Effect’s prior blogs on this topic. These mandatory leaves expired December 31, 2020. The stimulus bill passed on December 22, 2020, permitted employers to voluntarily allow employees to use any remaining EPSL or EFML by March 31, 2021 and still receive the related tax credits.

The ARPA further extends and expands original FFCRA leave allowances and related employer tax credit provisions as follows:

• Time period extended: Covered employers can continue to provide employees with EPSL and EFML through September 30, 2021 and receive tax credits to cover 100% of costs associated with such leaves. Covered employers can decide to offer both EPSL and EFML, only one of them, or neither.
• Additional 10 days of EPSL: Covered employers may provide employees with an additional 10 days of EPSL between April 1, 2021 and September 30, 2021 and receive tax credits to cover 100% of related costs.
• New reasons for EPSL: In addition to the previous qualifying reasons set forth in FFCRA, employers may provide employees EPSL for time spent awaiting COVID-19 test results, obtaining a COVID-19 vaccine, or recovering from “any injury, disability, illness or condition related to such” vaccine. Pay for these new leave reasons will be at 100% (up to a max of $511/day or $5,110 for 10 days).
• Additional 12 weeks of EFML: Covered employers may provide employees with an additional 12 weeks of EFML (all at 2/3 pay, up to a maximum of $12,000) between April 1, 2021 and September 30, 2021. Note this is an increase from 10 to 12 weeks of paid leave, and from $10,000 to $12,000 in maximum pay per employee.
• New reasons for EFML: Employers may provide employees EFML for all the qualifying reasons permitted for use of EPSL, including time spent awaiting COVID-19 test results, obtaining a COVID-19 vaccine, or recovering from the effects of such vaccine.
• New non-discrimination requirement: Employers will not receive tax credits for costs associated with voluntary EPSL or EFML if it discriminates in favor of highly compensated employees, full-time employees, or longer-tenured employees in providing leaves.

We continue to monitor developments and guidance relating to the American Rescue Plan Act of 2021  and other Biden Administration efforts to address the continuing impact of the COVID-19 pandemic. We will provide you with employment-related updates on these topics as they arise.

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• Amount of tax credit: The credits cover 100% of the costs of qualified sick and family leave wages (amounts paid to employees in Emergency Paid Sick Leave and Emergency Family and Medical Leave) plus the employer’s share of Medicare tax on those wages (1.45%) plus “any qualified health plan expenses allocable to those wages.” Of note, an employer does not owe the employer’s share of Social Security taxes on the qualified sick leave wages. (Q6, 10)
• How to determine amount of qualified health plan expenses: An employer can choose one of 3 reasonable methods for allocating the health plan cost to each employee: 1) use to COBRA applicable premium (ER + EE portions only, without mark up for administration); 2) one average premium rate for all employees; or 2) “a substantially similar method that takes into account the average premium rate determined separately for employees with self-only and other than self-only coverage.” The FAQs provide detailed guidance on each method, and what can and cannot be included. (Q9, 31-36, 40-42)
• How the credit is claimed: Employers calculate the amount of the credit and apply it against quarterly tax payments on the Form 941 to reduce what they would otherwise owe. If the amount of quarterly taxes is not sufficient to cover the credit, the employer must complete a Form 7200 to request an advance refund. (Q12-14)
• Substantiating eligibility for tax credits: To support the tax credit claimed, an employer must retain the following: 1) documentation from the employee requesting leave (Q44); and 2) documentation of how the qualified sick and family leave wages and the allocable health plan expenses were calculated; 3) copies of the Forms 7200 and Forms 941 submitted to the IRS. (Q45-46) This documentation must be retained for four (4) years. (Q46) Employers should coordinate closely with their payroll providers, who normally submits Forms 941, and now, assumedly, Forms 7200 to the IRS on their behalf.
• Multiple credits and benefits: An eligible employer may claim tax credits for qualified leave wages under FFCRA, for the Employee Retention Credit under the CARES Act, and a Small Business Interruption Loan under the CARES Act. However, employers cannot receive double credits for the same qualified wages. (Q18-19)
• Tax treatment of paid sick and family leave wages: Such wages are taxable to the employee. (Q55,57)
• Non-profits are eligible for the credits (Q56)

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace. Keep watching for new blogs  or subscribe to our mailing list for important legal updates and HR best practices. If you have any questions regarding our quick tips, the attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

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Definitions:

• Covered employers under EPSLA and EFMLEA: Includes both for-profit and non-profit entities who have fewer than 500 employees at the time an employee would take leave. (Sec. 826.40)
• Eligible employees under the EFMLEA: The EFMLEA applies to employees who have worked for the employer for at least 30 days as of the day before leave would begin. This includes employees laid off/terminated on or after March 1, 2020 but rehired on or before December 31, 2020, if they were on the employer’s payroll for at least 30 of the 60 calendar days prior to lay off/termination. (Sec. 826.10 and 826.30)
• Telework: Employees can “telework” if an employer has work for them, permits them to work off-site, and there are no COVID-19 related circumstances that prevent them from working. The employee must be paid for all hours actually worked. (Sec. 826.10) Note: An employee who is self-quarantining or is subject to a quarantine/isolation order is able to telework and therefore may not take EPSL, unless they are unable to work due to other COVID-19 related reasons. An employee who can telework while tending to family responsibilities may not take leave under the EPSLA or EFMLEA, absent other COVID-19 related reasons that prevent them from working.
• Full/part-time employees: Under the EPSLA, full-time employees are those normally scheduled to work at least 40 hours per week. Part-time employees are entitled to the number of hours they are normally scheduled to work over two workweeks. For full and part-time employees with variable schedules, EPSLA entitlement amount is calculated based upon average scheduled hours to work, including hours of leave, over the prior 6-month period or the duration of employment, if employed less than 6 months. (Sec. 826.21)

EPSLA Leave:

• For any of the six qualifying reasons for EPSLA leave, the overarching question is whether an employee would be able to work or telework “but for” the qualifying reason. If an employer does not have any work for an employee, he/she would be unable to work regardless of any EPSLA qualifying reason. Therefore, the employee is not eligible for EPSLA leave. (Sec. 826.20)
• An employee may take EPSLA leave to make, wait for, or attend an appointment for a COVID-19 test. An employee who cannot telework may take EPSLA leave while waiting for results. An employee may not take EPSLA leave to self-quarantine without seeking a medical diagnosis. (Sec. 826.20)
• An employee who seeks EPSLA leave to care for another person who is under quarantine must have a genuine need to care for the family member, roommate or similar person. (Sec. 826.20)
• An employee who seeks EPSLA leave to care for a child whose school or daycare is closed is only entitled to leave if the employee needs to, and actually is, caring for a child. The employee may not take leave if there is another suitable person who can provide childcare. (Sec. 826.20)

EFMLEA Leave:

• An employee may choose, or an employer may require the employee to use, any accrued paid leave that would be available under the employer’s current policies concurrently with EFMLEA leave. This will allow employees to receive full pay during an EFMLEA leave and allow employers to minimize longer employee absences. (Sec. 826.23)Note : The employer’s eligibility for EFMLEA tax credits will still be limited to the cap of $200 per day or $10,000 total.
• EFMLEA does not impose the same employer “specific notice” obligations as the FMLA.
• The “key employee” provisions under the FMLA also apply to restoration rights following leave taken under the EFMLEA. (Sec. 826.130)

Intermittent Leave:

• An employee may take intermittent leave under the EPSLA or EFMLEA only if the employee and employer agree. Although it need not be in writing, there must be a clear and mutual understanding about the leave and increments in which it may be taken. An employee’s ability to take intermittent leave under the EPSLA or EFMLEA while working at a worksite is depends on the reason for the leave, no doubt guided by the public policy of minimizing COVID exposure for other employees. For an employee who is teleworking, intermittent leave may be taken only during those times when the employee is unable to telework because of a COVID-19 related reason. (Sec. 826.50)
• An employee’s use of intermittent leave under the EPSLA or the EFMLEA will not undermine the employee’s salary basis for purposes of retaining an exempt status under the FLSA.

Small Employer Exemption:

A small employer (i.e. fewer than 50 employees) seeking exemption from EPSLA or EFMLEA paid leave requirements relating to school or daycare closures may deny leave to only those individual employees whose absence would cause the employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity.) This determination must be documented by an officer of the business. (Sec. 826.40)

Health Insurance Coverage:

• An employee who takes leave under the EPSLA and/or the EFMLEA is entitled to continued coverage under the employer’s group health plan on the same terms as if the employee did not take leave. (Sec. 826.110)

Employee Notice Requirements:

• An employer may require employees provide reasonable notice of a need for leave. Employees are required to provide certain documentation in support of leave under the EPSLA or EFMLEA. (Sec. 826.90)
• Documentation sufficient to support a leave must include a statement including: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for the leave; and (4) a statement that the employee is unable to work or telework because of the qualifying reason. The employee is required to provide additional, specific information based upon the cited COVID-19 qualifying reason for the leave. (Sec. 826.100)

Employer Recordkeeping:

• An employer must retain all documentation provided by employees (including documentation of employee oral statements) to support requests for EPSLA and EFMLEA leaves for 4 years, regardless of whether leave is granted or denied.
• A small employer who denies an employee’s request for paid leave under the EPSLA or EFMLEA must document its authorized officer’s determination and retain supporting documentation for 4 years.
• An employer must retain specific documentation for 4 years in order to claim tax credits for paid leaves under the EPSLA and EFMLEA. (Sec. 826.140)

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace. Keep watching for new blogs  or subscribe to our mailing list for important legal updates and HR best practices. If you have any questions regarding our quick tips, the attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

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• Covered Employers: In determining if an employer meets the fewer than 500-employee threshold, employers must count full-time and part-time employees within the US, including any state, the District of Columbia, and any territory or possession of the U.S. as of start date of the employee’s leave. Also included are employees on leave and temporary employees. (See Q2)
• Covered employees: All U.S. employees (see above) are eligible, including full-time (40+ hours per week), part-time employees, and “joint employees” working on your site temporarily and/or through a temp agency. For EmploFFCyee Paid Sick Leave (EPSL), all such employees are covered, regardless of tenure. For Expanded Family Medical Leave (EFML), employees must have been employed for 30 calendar days as of the requested start date of leave in order to be eligible. (See Q38)
• Hours to be paid: To determine the number of hours an employee is to be paid for EPSL and EMFLEA, employers should base the determination on the number of hours the employee is normally scheduled to work per week. For employees with variable hours, the number of hours will be determined by taking all hours worked over the past 6 months and dividing by the number of workdays. Overtime hours should also be included in the normal hours calculation. . However, no employee is eligible for more than 80 hours of EPSL. (See Q5, Q6, Q9, and Q28)
• Rate of pay: To determine the rate of pay at which employees are paid for EPSL or EFML, the employer must calculate the average of the employee’s “regular rate of pay” over a period of up to 6 months prior to the date on which the employee takes EPSL or EMFL. (See Q7 and Q8; See also DOL Fact Sheet – Regular Rate of Pay)
• Records to retain for tax credit: Employers must consult the IRS for applicable forms, instructions, and information on the procedures that must be followed to claim a tax credit for paid sick and family leaves taken by their employees. As of the release of this summary, such information is not available on the IRS website. (See Q15; See Q16 for documentation employees must provide to employers.)
• Defines “unable to work or telework” under FFCRA: Employees who are able to work or telework, whether from a worksite or from their homes, are not eligible for EPSL or EFML. If an employee and employer agree that the employee can work or telework outside of their normal work hours, then the employee is able to work and is not eligible for paid leave. The guidance specifies that if an employee is able to telework while caring for their child, then EPSL and EFML is not available. (See Q18-19)
• Intermittent PSL and EFML during work and telework: Under certain circumstances, employees may take intermittent EPSL and EFML with the employer’s permission. Employers and employees are encouraged to collaborate on this issue and be flexible. (See Q20-21)
  • Employer actions prior to April 1, 2020: If, prior to April 1, 2020, an employer sends employees home and stops paying them because it has no work for them, those employees are not eligible for EPSL or EFML. (See Q23)
• Closures, terminations, and lay-offs after April 1, 2020: If an employer closes its business, terminates or lays-off an employee after 4/1/20, the employee’s eligibility for EPSL and EFML ends immediately with the loss of employment, even if the employee is currently on EPSL and EFML. While on EFML, employees are not protected from lay-offs or terminations carried out for legitimate business reasons if the employees would have been affected by such action if they were not on leave. (See Q24 – 27, and Q43)
• Reduction in hours and EPSL and EFML: If an employer reduces work hours because it does not have work, employees may not use EPSL and EFML to make up the differential between the reduced schedule and their former schedule. However, if a COVID-19 qualifying reason prevents an employee from working their full schedule, the employee is eligible for PSL and/or EFML, and the amount of leave permitted will be based upon their normal work schedule. (See Q28)
• Interaction with employer’s other paid leaves: If an employee is eligible for EPL or EFML, as well as additional paid leave under an employer’s existing policies, the employer may permit an employee to use the employer’s existing paid leaves to supplement or adjust the paid leaves available under the FFCRA up to their normal earnings. Employers cannot require employees to use their existing paid leave time to supplement their pay when taking EPSL or EFML. (See Q31- 33)
• Limitations based on employee’s use of FML and EFML: Employees are limited to a total of 12 work weeks during a 12-month period under the Family Medical Leave Act, including the new EFML Expansion Act. Therefore, the amount of EFML that an employee is entitled to take prior to 12/31/20 (when it expires) will depend upon how much unpaid FMLA leave the employee has already taken during the relevant 12-month period. EPSL is distinct from the Family and Medical Leave Act, and it does not count against an employee’s annual 12-week FMLA allotment. (See Q45)
• Small business exemption: A small business (with fewer than 50 employees) may claim exemption from only the EPSLA and EFMLEA leaves related to an employee’s child’s school or daycare being closed due to COVID-19 if an authorized officer of the business has determined one of the following applies:
  1. Providing PSL or EFML would result in the business’s expenses and financial obligations exceeding “available business revenues and cause the small business to cease operating at a minimal capacity;”
  2. The absence of the employee or employees requesting paid leave would entail a substantial risk to the business’s financial health or operational capabilities because of their specialized skills, knowledge of business, or responsibilities; OR
  3. There are not sufficient workers able, willing and qualified to perform the labor or services provided by the employee or employees requesting paid leave, and the labor or services are needed for the small business to operate at minimal capacity. (See Q58-59)

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace. Keep watching for new blogs  or subscribe to our mailing list for important legal updates and HR best practices. If you have any questions regarding our quick tips, the attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

The post Department of Labor Issues Additional Guidance on FFCRA appeared first on Lake Effect HR & Law.

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have extended the flexibility in complying with requirements related to Form I-9 until July 31, 2023. See below for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

The current I-9 form is set to expire on October 31, 2022, but DHS and ICE have announced that employers are to continue using the current version beyond that expiration date until further notice.

** Update August/September, 2021 ***

We have two important updates for employers.

First, employers can continue remotely inspecting Form I-9, Employment Eligibility Verification through December 31, 2021. The Department of Homeland Security (DHS) has extended this flexibility as an ongoing precaution related to COVID-19. See below for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

Second, as communities focus on how they can support recent refugees from Afghanistan and elsewhere, employers are reminded that refugees may work immediately upon arrival to the United States. While refugees wait for their Employment Authorization Document (EAD), they may present their Form I-94, Arrival-Departure record as proof of their permission to work in the United States, along with a document that establishes identity.

** Update June, 2021 ***

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) has once again extended the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

The temporary guidance was set to expire May 31, 2021 and has been extended to August 31, 2021 due to ongoing precautions related to COVID-19. Employers and workplaces operating remotely can continue to inspect the Section 2 documents of the Form I-9 virtually through August 31, 2021.

See our below for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form 1-9.

** Update April, 2021 ***

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. The temporary guidance was set to expire March 31 and has been extended to May 31, 2021 due to ongoing precautions related to COVID-19. Employers and workplaces operating remotely can continue to inspect the Section 2 documents of the Form I-9 virtually through May 31, 2021. See our original blog, below, for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

** March 27, 2020 **

Over the past two weeks, the HR professionals and attorneys at Lake Effect HR & Law have been helping our clients weather the storm of COVID-19. Every day, we meet as a group on Microsoft Teams to collaborate on client issues, discuss and assess the latest developments, share legal and HR research we have conducted, and, equally as important, touch base with each other as friends, not coworkers. At the end of each meeting, we share quick tips that we have gained throughout the prior 24 hours. Please find below some of our latest tips for employers:

• Set up New Pay Codes for EFMLEA and EPSLA paid leaves: Establish two new pay codes in your payroll system to track employee time for paid time off under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Leave Act (EPLA). This will facilitate your ability to receive tax credits. See our summary of these acts Families First Coronavirus Response Act – Enacted 3/18/2020 which are part of the Families First Coronavirus Response Act.
• Inspection of Employee’s Form I-9 Work Authorization Documentation: Employers will not be required to review new hires’ identity and employment authorization documents in the employee’s physical presence when the new hire will immediately be working remotely due to COVID-19. Employers must still inspect the Section 2 documents over video conference, fax, or e-mail and obtain and retain copies of the documents within three business days. Employers are instructed to enter “COVID-19” as the reason for the physical inspection delay in the additional information field in Section 2. Employers that avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This exception to the usual I-9 process will remain in effect until May 19th, or within three business days after the termination of the national emergency, whichever comes first.
• Direct Deposit of Paychecks: Encourage employees to sign up for direct deposit or pay cards in the event you are unable to deliver live paychecks in person or if mail is disrupted.
• Concerns About Employees’ Safety and Wellness while WFH: Encourage managers to conduct wellness checks on employees who are working from home. Certainly, check on employees COVID-19 related wellbeing. Further, not every home is a safe haven and some of your employees may have the additional stressors, including but not limited to finances, domestic violence, mental health, or addictions. Encourage your managers and HR to share resources for employees, including your employee assistance plan (EAP) and community resources like United Way’s 211, which is designed to connect people to needed social services, confidentially and free of charge. Individuals can call 2-1-1 or 877-947-2211 for help through United Way. If you need assistance finding resources, let us know and we can try to help.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace. Keep watching for new blogs  or subscribe to our mailing list for important legal updates and HR best practices. If you have any questions regarding our quick tips, the attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

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