09.18.20
The Department of Labor Amends its FFCRA Regulations
COVID-19
On August 3, 2020 we wrote about the decision of the Southern District of New York invalidating certain provisions of the DOL regulations related to emergency paid sick leave and leave under the expanded family and medical leave act. The DOL recently responded to the court’s order. Here is some background, on what happened and how the DOL responded.
The Families First Coronavirus Response Act (“FFCRA”) created two paid leave provisions related to COVID-19. Under Emergency Paid Sick Leave (“EPSL”), an employee can take up to 10 days (two weeks) of paid time off under certain conditions when unable to work due to COVID-19 factors. Emergency Family and Medical Leave Expansion (“FMLAE”) allows an employee to take up to an additional 10 weeks of paid time off to care for a child due to the closure of the child’s school or place of care.
The DOL enacted regulations to implement the law. However, the federal District Court for the Southern District of New York determined that four of the regulations were invalid:
1. The requirement under 29 C.F.R. § 826.20 that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave;
2. The requirement under 29 C.F.R. § 826.50 that an employee may take FFCRA leave intermittently only with the employer’s approval;
3. Pursuant to 29 C.F.R. § 826.30(c)(1), the definition of an employee who is a “health care provider” who is excluded eligibility for EPSL or FMLAE leave; and
4. Pursuant to 29 C.F.R. § 826.100, the requirement that employees must provide the employer with certain documentation before taking leave.
In response to the court’s opinion, the Wage and Hour Division (“WHD”) of the DOL issued the following amendments to the regulations:
1. The qualifying reason for EPSL and FMLAE leave must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he or she had a qualifying reason such as if the worksite had closed. The WHD based this on the law’s “but-for” causation standard.
2. The WHD stood firm on requiring employer approval to take intermittent FMLAE leave. It concluded that avoiding any disruption of business operations is a principle of the FMLA and that the rule requiring employer approval best meets that principle.
3. Health care providers who can be excluded from these leaves are those who fall within the FMLA’s definition of a health care provider under 29 C.F.R. §§ 825.102 and 825.125. This includes physicians and others who make medical diagnoses, as well as employees who are health care providers based on their roles and duties, such as persons “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”
4. Documentation required to take either EPSL or FMLAE need not be given to the employer before taking the leave, but may be given “as soon as practicable.”
These amendments to the DOL regulations may affect your business. Please consider them before making decisions regarding eligibility and documentation for any leaves.
09.14.20
COVID-19 Update: California Emergency Paid Sick Leave and Updated EEOC Guidance
COVID-19
On September 9th, Governor Newsom signed AB 1867, which expands the responsibility to provide employees with supplemental paid sick leave to all employers of 500+ employees, and to health care organizations that were able to exempt themselves from the federal Families First Coronavirus Response Act (FFCRA.)
Similar to federal emergency paid sick leave, covered employers must provide up to two weeks of supplemental paid sick leave for reasons related to COVID-19, including when a worker is:
1. Subject to a federal, state or local quarantine or isolation order related to COVID-19;
2. Advised by health care provider to self-quarantine or self-isolate due to concerns related to COVID-19;
3. Prohibited from working by the employer due to concerns related to the potential transmission of COVID-19.
Two weeks is defined as 80 hours for full-time employees (working an average of 40 hours per week). Part-time employees are entitled to the average number of hours they are normally scheduled to work in a two-week period. The law contains a special provision for firefighters, stating that if the firefighter was scheduled to work more than 80 hours in the two weeks preceding the leave, he/she is entitled to the total number of hours they were scheduled to work in those two weeks.
The amount of pay must be equal to the employee’s regular rate of pay, up to a maximum of $511 per day and $5,110 in total per employee.
If an employer has already provided supplemental/emergency paid sick leave under Executive Order N-51-20 (applicable to food sector workers) or under a local or federal law (such as a local city ordinance or the federal FFCRA), the employer is not required to provide additional sick leave under this bill.
Unlike the FFCRA, supplemental paid sick leave payments under AB 1867 do not appear to be deductible from the employer’s payroll tax obligations. Covered employers may wish to speak with a tax professional for additional guidance.
AB 1867 takes effect immediately, but covered employers have ten days (until September 19, 2020) to begin providing supplemental paid sick leave to employees. There will also be an employee notice requirement, and the Labor Commissioner will provide a model notice by September 16th.
On September 8th, the Equal Employment Opportunities Commission (EEOC) issued updated guidance on COVID-19 and its interaction with federal employment laws. Helpfully, they’ve used “9/8/20” to indicate where they’ve offered new guidance or revised old questions. There are 20 questions where guidance has changed or been added since it was originally issued in April 2020.
Employee Health Screenings
Depending on how your organization administers screenings, you will likely be able to continue your current process, as the EEOC affirmed that screening does not violate federal law. Employers are still permitted to screen employees entering the workplace consistent with guidance offered by the CDC or other public health agencies. Screening should be conducted similarly for all employees, and employees who refuse to participate may be barred from the workplace.
Because teleworking employees are not physically interacting with others, screening employees who do not come into the office is not permitted.
The EEOC clarified that employers may ask employees questions about employee travel during the pandemic because these are not disability-related inquiries. They added, “If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.”
The EEOC cautioned that though employers may ask whether employees have had contact with anyone diagnosed with COVID-19 or showing symptoms associated with COVID-19, they may not otherwise ask about a family member’s condition.
Confidential Information
If you learn that an employee is positive for COVID-19, exercise care in how that information is shared and stored. It is important not to share confidential medical information, and only a limited number within an organization will need to know the identity of an employee who is infected with COVID-19. Information about infected employees should not be stored in places where others may have access.
The EEOC advises employers, though, that protecting medical information does not prevent employers from notifying those who may have come into contact with the infected employee in a generic way.
The DFEH suggested a notification such as: “[Employer] has learned that an employee at [office location] tested positive for the COVID-19 virus. The employee received positive test results on [date]. This email is to notify you that you have potentially been exposed to COVID-19 and you should contact your local public health department for guidance and any possible actions to take based on individual circumstances.”
Reasonable Accommodation
The EEOC also included updated guidance on providing reasonable accommodations. Because each situation is different, please call Sierra HR Partners if an employee requests an accommodation, including continued telework.
As always, Sierra HR Partners is here to help you analyze these new developments and understand how they may impact your company. Please contact us with any questions you have!
09.08.20
September 2020: Lost Wages Assistance and Payroll Tax Holiday Updates
COVID-19
September 2020
Lost Wages Assistance and Payroll Tax Holiday Updates
Just in case you weren’t closely watching the news, August 8, 2020 was International Cat Day and actor Dustin Hoffman’s 83rd birthday. It was the 122nd anniversary of the invention of Corn Flakes and the 51st anniversary of the Beatles’ famous Abbey Road photograph. August 8th was also a busy day for presidential memorada, as President Trump signed two orders that impact our workplaces.
Federal Unemployment Benefit Extension
July 31st saw the expiration of the additional $600 per week in federal unemployment insurance benefit created by the CARES Act, leaving us wondering what might be coming next from Congress. When an extension of the program could not be agreed-upon by legislators, President Trump signed a presidential memorandum authorizing the Federal Emergency Management Agency (FEMA) to direct funds to be used for “lost wages assistance.” $300 per week would be available from the federal government, and an additional $100 per week was to be provided by each state participating in the program.
Governor Newsom has stated that California cannot afford to pay the additional $100 weekly benefit, so unemployment claims dated July 26th forward will be eligible for $300 in additional payments. According to the EDD web site, employees who have filed claims due to COVID-19 do not need to take any additional action to receive the new federal benefit. Payments will begin September 7th and will be issued retroactively to weeks beginning July 26th.
The duration of the Lost Wages Assistance program is unclear, as FEMA granted funding to cover just three weeks of unemployment benefits. Additional disbursements to states may be made on a weekly basis.
Payroll Tax Holiday
The president signed an additional memorandum directing the U.S. Treasury Department to defer the withholding of employees’ social security taxes for the period of September 1st to December 31st, 2020. Guidance on how this would be implemented was not provided until late last week, when the Treasury Department issued a brief, but very confusing, statement. Essentially, employers are permitted, but not required, to pause employees’ social security tax withholdings beginning this month.
However, this is not a forgiveness of tax obligations. Employers would be expected to collect the missed withholding amounts between January and April 2021 and remit them to the IRS along with normal tax payments. Employers could also be on the hook for the missed taxes of employees who leave the company during that “payback” time frame. This program may provide short-term financial relief for employees, but next year may be difficult for all involved.
Employers are encouraged to weigh the pros and cons with their payroll service and/or tax professionals to determine the best response to this program.
08.31.20
COVID-19 Update: Governor Newsom’s Blueprint for a Safer Economy
COVID-19
Today (August 28, 2020), Governor Newsom announced a new “Blueprint for a Safer Economy” that modifies earlier guidance. These new restrictions can be found on the state COVID-19 website, and include four categories into which a county may fall. These categories are based on the number of daily new cases (per 100k) and the percent of positive tests, and a county’s category determines which kinds of businesses may open.
Counties may advance in tiers, but must remain in a tier for at least three weeks before moving forward. Additionally, a county must meet the next tier’s criteria for two consecutive weeks before moving forward.
Fresno County currently falls into the “Widespread” category. Daily new cases are at 16.5, and the positivity rate is 11%.
Regardless of a county’s category, as of August 31, 2020, all retail and shopping centers, hair salons, and barber shops may open with modifications. Individuals can visit the website and enter “Fresno” (or any other county) to see the status of a given industry within the county.
07.31.20
COVID-19 Update: The Use of Expanded FMLA Leave for Distance Learning
COVID-19
New legal guidance indicates that an employee may be eligible to use up to 12 weeks of Expanded FMLA to facilitate the distance learning needsof his/her child(ren.)
With most California schools unable to begin on-campus instruction anytime in the near future, parents are struggling to make plans for children’s distance learning needs. Navigating online classroom time, other digital resources, and homework assignments presents a significant challenge for kids and parents alike.
It was previously viewed that the ability to use Expanded FMLA to care for a child whose school or day care is closed did not extend to the desire to provide educational support. However, the U.S. Department of Labor (DOL) seems to give parents the ability to define “care” for themselves. In its ever-growing list of FAQs, the DOL states that in order to use Expanded FMLA, the employee must provide:
• The name of the child being cared for;
• The name of the school, place of care, or child care provider that has closed or become unavailable; and
• A statement that no other suitable person is available to care for the child. (See FAQ #15)
There is no clear definition for the term “suitable” so a parent may reasonably determine that “suitable care” includes the ability to oversee and support distance learning. A grandparent or other person whose care has been sufficient during the summer may no longer be viewed as suitable once the school year begins.
Further, the DOL gives a fairly broad definition of “place of care,” stating, “Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.” (See FAQ #67) This indicates that “care” may involve more than simply physical attention, supervision, and general safety.
We understand that allowing several employees to be off work for this purpose could significantly impact your business operations. The FFCRA does allow an employer of fewer than 50 employees to exempt itself from providing Expanded FMLA leave “when doing so would jeopardize the viability of the small business as a going concern.” (See FAQ #58) Legal guidance is recommended to determine whether a small business can lawfully exclude itself from providing leave. Health care providers and emergency responders may also exclude themselves. (See FAQs #56 and #57)
The DOL states that employers and employees are encouraged “to collaborate to achieve flexibility and meet mutual needs.” Intermittent leave, reduced work schedules, and telework arrangements may be options for allowing your employees to provide the desired care for their children while also accomplishing the needs of your business.
We understand how complicated and confusing these decisions can be, and you’re not in this alone! Contact one of our certified Consultants to discuss the specific scenarios being reported by your employees.
