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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Key provisions of the Emergency Relief bill include:

• Direct payments to individuals: provides a one-time payment of $600 to individuals earning up to $75,000 per year. Couples earning up to $150,000 per year will receive $1,200. Caregivers will receive an additional $600 for each dependent child.
• Additional Paycheck Protection Program (PPP) loans, Economic Injury Disaster Loans (EIDL), and other small business support: provides additional funds for first and second PPP loans to eligible recipients, with dedicated funds for small and minority-owned  businesses, as well as additional small business and EIDL grants.
  • Most new provisions apply to PPP loans made before, on, or after date of enactment of current stimulus bill.
  • PPP loan eligibility is expanded to include housing cooperatives, news organizations and 501(c)(6) nonprofit organizations, but publicly traded companies are specifically excluded from new PPP loan eligibility.
  • Forgivable PPP loans may be used to cover operations expenses (e.g., software, cloud computing, accounting needs), property damage due to public disturbances, supplier costs, and PPE expenditures; employer-provided group insurance benefits are included in payroll costs (e.g., group life, disability, health, vision, dental insurance).
  • Certain organizations with fewer than 300 employees may receive a second PPP loan of up to $2 million. The 60/40 cost allocation between payroll and non-payroll costs for full forgiveness will continue to apply.
  • Eligible organizations must have experienced a 25% drop in gross receipts in 2020 compared to a comparable quarter in 2019.
  • The covered period (whether an employer elects an 8-week or 24-week period) for all PPP loans is extended through 3/31/21.
  • Deductions are allowed for otherwise deductible business expenses paid for with proceeds of a PPP loan that is forgiven.
  • Recipients of PPP loans under $150,000 may utilize a simplified forgiveness request process.
  • Organizations that receive both an EIDL grant and a PPP loan need not deduct forgiven amount of EIDL grant from the forgivable amount of their PPP loan.
  • SBA is authorized to award grants to eligible live venue operators, theaters, performing arts organizations, museums, motion picture theaters, etc. to be used for payroll costs, rent, utilities, and Personal Protective Equipment (PPE).
  • Additional targeted EIDL grant funding is provided for low-income communities, and the covered period for Emergency EIDL grants is extended through 12/31/21.
• Unemployment Assistance: provides for supplemental federal unemployment benefits and extends time periods for receiving unemployment benefits under state and federal pandemic programs.
  • Federal Pandemic Unemployment Compensation (FPUC) program will provide a supplement of $300 a week to all state and federal unemployment benefits recipients from 12/26/20 until 3/14/21.Because the legislation was not signed until 12/27/20, recipients may experience a one-week gap in benefits.
  • Pandemic Unemployment Assistance (PUA) is extended until 3/14/21, and recipients getting benefits as of that date may continue to do so through 4/5/21; maximum number of weeks of PUA benefits is increased from 39 to 50.
  • Pandemic Emergency Unemployment Compensation (PEUC) program is extended until 3/14/21, and recipients getting benefits as of that date may continue to do so through 4/5/21; maximum number of weeks of PEUC benefits is increased from 13 to 24.
  • States must develop methods to address situations in which unemployment compensation recipients refuse to accept offers of suitable work without good cause, including a method for employers to notify the state when an individual refuses employment.
• Employee Retention Credit extended, and eligibility expanded: extends Employee Retention Tax Credit under the CARES Act through 6/30/21.
  • Tax credit rate is increased from 50% to 70% of qualified wages, and the limit on per-employee creditable wages is increased from $10,000 per year to $10,000 per quarter.
  • Eligible criteria are expanded to include employers experiencing a 20% (vs. 50%) reduction in year-over-year gross receipts and employers receiving PPP loans.
• Payroll tax credits for FFCRA leaves extended: guarantees that employers who continue to provide paid sick and family leaves in accordance with prior FFCRA requirements will continue to receive payroll tax credits through 3/31/21. Tax credits apply as if the corresponding employer mandates were extended through 3/31/21.Note that employers are no longer required to provide FFCRA paid leaves, but the continuing tax credits provide an incentive for them to do so.
  • Employers who want to take advantage of these tax credits must follow the FFCRA leave requirements set forth in the original Act.  See our prior blogs on this issue and consult with experienced HR and legal advisors to ensure FFCRA compliance and receipt of the tax credits.
• Extension of deferred payroll taxes: extends the repayment deadline until 12/31/21 for employers who deferred withholding of employees’ share of social security taxes. Penalties and interest on deferred unpaid tax liability will not begin to accrue until 1/1/22.
• Extension of time for distribution of CARES Act funds: extends for one year, or until 12/31/21, the time for states and local governments to distribute Coronavirus Relief Funds previously allocated under the CARES Act.
• Relief for transportation industry: provides funds to support transit industry including airlines, airline contractors, airports, state departments of transportation, Amtrak, and the motorcoach, school bus and ferry industries. In order to receive funds, airlines must recall involuntarily furloughed employees, provide backpay to returning employees, and guarantee minimum air transportation service.
• COVID-19 vaccines, testing, tracing, and mitigation efforts: provides dedicated funds to procure and distribute vaccines and direct financial aid to states for testing, tracing, and COVID-19 mitigation programs, including grants designated for underserved communities; provides additional funds to support mental health, health care providers, COVID-19 research, and the Indian Health Service.
• Emergency rental assistance: provides $25 billion for a federal emergency rental assistance program to be administered by state and local governments. Funds will be used to help eligible families struggling to pay rent, utilities, and other housing-related expenses. The CDC’s previous eviction moratorium is extended through 1/31/2021.
• Broadband and telehealth: provides funds to increase broadband access for low-income families, tribal communities, and rural communities, and appropriates additional funding for telehealth programs.

Please note that this is not an exhaustive list of all provisions included in the Emergency Relief Bill. We encourage you to consult with your business and tax advisors about the Emergency Relief Bill and its impact on your organization and employees.

For additional and information and discussion of FFCRA and PPP loans, please see Lake Effect’s prior blogs on those topics. We will continue to closely monitor all developments in this area and provide you with important updates.

Lake Effect is here to answer your questions about federal and state pandemic relief packages affecting employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

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Key portions of the revised regulations provide the following:

• An employee is only entitled to Paid Sick Leave (“PSL”) and Expanded Family and Medical Leave (“EFML”) under FFCRA if the employer would otherwise have work available for that employee to perform. If there is no work available due to circumstances other than a qualifying reason for the leave, i.e. the employer has laid off or furloughed employees, or has temporarily or permanently closed the worksite, then an employee is not entitled to FFCRA leave. This “available work” requirement applies to all qualifying reasons for FFCRA leaves.
• An employee must obtain employer approval to take intermittent FFCRA leave for any qualifying reason, regardless of whether the employee is teleworking or working on-site. Intermittent leave occurs when the employee takes leave in separate blocks of time due to a single qualifying reason. For an employee working on-site, many of the qualifying reasons for EPSL leave will not lend themselves to intermittent leave because they create a high risk of spreading the virus. Of note, the revised regulations clarify that the employer-approval requirement does not apply to employees who take FFCRA leave in full-day increments to care for children whose schools are operating on an alternate day (or other hybrid attendance) basis because such leave is not intermittent. In that scenario, where a school is physically closed to the employee’s child on particular days, each day of the school closure constitutes a separate reason for FFCRA leave. Thus, the employee may take leave due to the school closure until that qualifying reason ends (i.e. the school re-opens) and then take leave again when the new qualifying reason begins (i.e. the school closes again) – without the approval of the employer.
• The definition of a “health care provider,” who may be exempted from FFCRA’s leave provisions, includes only those who meet the definition of that term under the FMLA regulations and those who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
• Employees must provide required documentation to support FFCRA leaves to their employers as soon as practicable, but they need not provide it prior to taking PSL or EFML. Similarly, an employee must provide advance notice of EFML as soon as practicable. If the need for that leave is foreseeable, the employee should provide notice before taking the leave.

Your partners at Lake Effect HR & Law are closely monitoring the impact of COVID-19 on the workplace. Keep watching for blogs and emails for important legal updates and HR best practices. 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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In the face of this challenge, consider incorporating the following practices into your workplace culture to support your employees’ wellbeing and fulfill your organization’s mission and strategic initiatives.

• Maintain flexible scheduling. As home and work priorities shift, employees may be more productive and focused during non-traditional business hours or blocks of time during the day, including evenings and weekends. When team members work different hours, encourage them to communicate and be transparent about their schedules. This will promote a productive workflow and strengthen working relationships.
• Continue virtual work. If your team has proven they can be successful working virtually, continue to provide this flexibility. This may give those employees who need or want to work from another location an opportunity to spend the summer at their cabin, rent a VRBO, or stay with out-of-town family or friends for an extended time.
• Welcome the interruptions. Intentionally or inadvertently, we have met (or heard in the background) our coworkers’ furry friends, kids, family, and roommates. We’ve had an opportunity to visit our coworkers’ homes through the lens of our computer cameras during video conferences. Rather than begrudging the interruption, welcome this opportunity to get to know one other as individuals, not just coworkers.
• Encourage employees to collaborate on pod learning and/or caregiving responsibilities. As many school districts have decided on some version of virtual learning, employees may want the opportunity to work together to create pod learning or shared childcare. Connecting employees in this manner may provide them an opportunity to work alternate days or times. In addition, consider converting unused conference rooms to temporary classrooms or playrooms, just be sure to check with your worker’s compensation carrier.
• Promote wellness benefits and other wellbeing resources. Work closely with your benefits broker, understand your current organization’s wellness benefits, and educate your employees on these offerings. During your annual renewal, consider additional, lower cost, but high health reward benefits to better support the wellness needs of your staff. These benefits may include an employee assistance plan (EAP) or subscription services to wellness apps, online yoga classes, coffee clubs, or other services that support wellness activities for your entire employee population, even those who do not participate in your health, dental, and vision plans. Focus as well on virtual activities your employees can engage in together, such as company-wide or departmental fitness or step per day goals.
• Encourage use of paid time off. We might not be planning our once-in-a-lifetime vacation this year, but there are many adventures awaiting us locally. Remind employees of their PTO balance and encourage them to take time to recharge, this may include helping them efficiently tackle their work tasks so they can enjoy the time away. Add some fun and promote their time away by sharing pictures of their adventures on an internal shared site.
• Support your wellness/social committee. A wellness committee is usually made up of a group of employees that are passionate about wellness and engaging their coworkers in some office fun. This group may be able to plan virtual celebrations, arrange for group wellness activities, or delivery company branded gifts to employees’ homes, like customized face masks and small hand sanitizers! Include gift certificates to encourage employees to support local restaurants and shops.
• Review processes and procedures. Update processes and procedures to be more efficient and relevant in your current work environment. Review expense reimbursement procedures to determine if you should start reimbursing for employees’ virtual expenses, such as cell phone, internet, hotspot, or office supplies/equipment.
• Evaluate leaders’ job duties and responsibilities. In addition to leading people, leaders have their own job responsibilities and deadlines to meet. Provide leaders more time to lead during these uncertain times by transferring job duties that may provide others a growth opportunity. You may find that after updating processes and procedures to be more efficient, employees may have more capacity and would welcome to learn a new skill.
• Continue coaching and development efforts. Employees want and need frequent feedback and recognition, especially during times of change and uncertainty. Consider adapting your process to better suit your current workplace situation to ensure supervisors are frequently communicating with direct reports. Encourage managers to check in with their teams to find out how they are doing, if they need additional resources, and to remove any roadblocks.
• Keep calm and communicate. The COVID-storm has not passed yet, keep communicating frequently with your employees. Now, more than ever, employees want to know how COVID-related changes are impacting the organization and themselves. Discuss with employees the direction of the organization, how they can support the organization’s initiatives, and when they achieve their goals.
• Be true to your organization’s mission. When considering how to adapt your workplace, remember your guiding star – your organization’s mission, vision, values, and strategic plan.

If you have questions about managing and engaging a virtual workforce, leave requests, or other FFCRA or FLSA related questions, the HR and legal team at Lake Effect can help.

We are closely monitoring the impact of COVID-19 on the workplace. Keep watching for blogs and emails from your Lake Effect team for important legal updates and HR best practices. 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 Engaging & Retaining Employees, While Navigating FFCRA & FLSA appeared first on Lake Effect HR & Law.

FFCRA Guidance

As a reminder, employees may be eligible for up to 80 hours of leave under FFCRA’s Emergency Paid Sick Leave Act (EPSLA) and up to 12 weeks of leave under FFCRA’s Emergency Family and Medical Leave Expansion Act (EFMLEA). See our FFCRA Overview for the particular requirements of each leave program.

Employers should also note that a district court in New York recently struck down several significant FFCRA regulations, including those EPSLA regulations related to employees on temporary layoff or furlough and the expansive scope of the healthcare provider exemption for both EPSLA and EFLMLEA leaves. The impact of the ruling is not clear at this point, and we expect more information in the near future. We will keep you posted in our blogs about any changes to FFCRA as a result of that legal process and other lawsuits that are currently pending. In the interim, employers should contact legal counsel before denying a FFCRA leave request.

DOL’s guidance on FFCRA includes almost 100 frequently asked questions about the leave programs. Three that are of particular significance relate to virtual school and returning employees:

• Online Schools Are “Closed”
  • Under the guidance, a school that has moved to an online platform for instruction is “closed” for purposes of FFCRA. (Question #70) This means that employees may be eligible to take up to a total of 14 weeks of continuous or intermittent EPSLA and EFMLEA leave to care for a child whose school is operating virtually. Although not specifically addressed by DOL, this guidance would also apply to schools operating a hybrid model. Under the hybrid model, the school is “closed” on those days in which a student cannot attend the physical school but open on those days when in-person instruction is offered.
  • If the school offers an option for virtual or in-person instruction, the school is not “closed” and FFCRA leave is not available for caregivers who choose the virtual option.
  • Employees who used some of their leave in the spring or summer when schools were closed due to COVID-19 are entitled to use their remaining amount in the fall if they are otherwise eligible.
• Requiring a Negative COVID-19 Test Before Returning to Work
  • According to DOL, employers may require that an employee test negative for COVID-19 before returning to work from FFCRA leave as long as this requirement applies to all employees. (Question #94)
  • However, requiring a negative test is not mandatory. Dane County employers should note that PHMDC now strongly recommends against requiring employees to test negative before returning to work. Instead, employers may rely on the CDC (or your local public health department) guidelines for monitoring symptoms over a period of time.
• Employers May Not Discriminate Based on Use of or Eligibility for FFCRA Leave
  • Employers may not use an employee’s request for FFCRA leave, or an assumption that the employee will request leave, to make any employment decision, including whether to recall an employee from furlough. (Question #97)

FLSA Guidance

DOL added important clarifications for non-exempt and exempt employees in its updated FLSA guidance. The updates include:

• Flexible Scheduling for Non-Exempt Employees
  • To allow “needed flexibility” during the pandemic, employers that allow their non-exempt employees to work remotely with flexible schedules do not need to count all of the time between the first and last work activity during the day as hours worked. Instead, employers only need to pay for those hours actually worked. (Question #15)
  • This flexibility allows “windowed work” for non-exempt employees. Windowed work is breaking up a workday into blocks – or windows – of business and personal time while working from home.
• Changes to Exempt Employees’ Job Duties and/or Salaries
  • As long as employers continue to pay the required minimum weekly salary of $684, employers may temporarily require exempt employees to perform non-exempt job duties and may prospectively reduce exempt employees’ salaries due to economic reasons related to COVID-19. (Questions #16 and #19)
  • Note that exempt employees must be paid their full salary for any week during which they perform any work, with the exception of their first and last workweeks.

We are closely monitoring the impact of COVID-19 on the workplace. Keep watching for blogs and emails from your Lake Effect team for important legal updates and HR best practices. 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 FFCRA & FLSA Updated Guidance From The Department Of Labor appeared first on Lake Effect HR & Law.

Moving forward, full compliance with FFCRA will be expected. Moreover, proper documentation and administration of the new Emergency Paid Sick Leaves and Emergency Family Medical Leaves will be critical to receiving payroll tax credits for the sick leave wages provided to employees under the new law.

If you have any questions or need assistance administering the new FFCRA paid leave laws, 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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• 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.

The post DOL Issues Temporary Rule Regarding Paid Leaves Available Under FFCRA appeared first on Lake Effect HR & Law.

• 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.

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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.

The post Remote I-9 Validation appeared first on Lake Effect HR & Law.