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Coronavirus: FAQ’s Recorded Webinar with Jen & Molly Your HR Questions Answered

On April 2nd, we hosted a free live interactive webinar with our HR consultants Jen & Molly. They spoke about the latest developments and also answer your questions live. We left the system open for anyone to submit their questions and Jen & Molly compiled all the information for you.

CARES Act

We can’t speak to the nuances of the PPP. Your bank or CPA will likely be able to respond to that. You are not required to make teleworking available, but if you are unable to do so, and you are not part of an essential industry, we recommend putting the employee on furlough. If you are part of an essential industry and your employee is refusing to work, that employee would not be eligible for any of the paid leave options. The employee may use their company paid sick leave, and you can require that they use PTO.

DE2063

Is there form 2063 available online?

Yes.

EPSL, Documentation, Eligibility

What documentation will be required to get the tax credit for the paid sick or EFMLA?

What process should we follow for any employee who is asking us to give them EPSL?

The IRS has identified how an employer should substantiate their claims in questions 44 and 45 of their FAQ’s. https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs#substantiate_eligibility

Can we require a doctor’s note to “prove” they are impacted by COVID-19?

You can request it, but it may not be feasible for the employee to get one. At the very least, we recommend getting the name and contact information of the health care provider that is recommending self-quarantine.

How large does an employer need to be for this to apply? 50 as in FMLA?

What was the EFMLA limit again?  Audio was garbled for a second.

Is this for only for companies with less then 500 employees?

EPSL and EFMLA apply to employers with 500 or fewer employees.

If an employee can work remotely and that is set up by the employer, I assume they are also not eligible (unless they personally are sick?)

Correct. EPSL and EFMLA only apply if the employee is not able to work or telework  

How is EPSL to be interpreted for firms with unlimited PTO? Can they just say that their kids are at home, so they aren’t going to work, even though they are fully set up remotely? Even if they have a spouse at home, too?

It depends on how your PTO policy is written. Most PTO policies state that an employer may approve or deny PTO. Under the circumstances, it seems reasonable that you would deny the request for PTO.

If an EE is out on EFMA and their position would have been laid off due to project completion, would the EFMLA paid leave discontinue?

No. As with regular FMLA, if a position would have been eliminated  for reasons other then their leave, you are not required to continue employment. The employee would be eligible for UI.

If an EE is considered high risk (eg: senior over 65 or per existing conditions as examples)and can’t continue to work, can they get UI?

So, older workers or those with pre-existing conditions who can’t go to work, is that UI or Disability? Understand the Dr’s note suggestions.

If an employee has certification from a health care provider that they can’t work, they may be eligible for EPSL/EFMLA or they may be eligible for Disability insurance. It depends on the circumstance.

Not sure if you covered this, I joined late.  Are non-profits (as we are public entities) with 21-30 employees subjected to the FFCRA?  I see that private entities are, not certain about public non-profits.  Thx!

According to the DOL, “The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees.[4] Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.” There is no mention of an exemption for non-profits.

Can an employee choose to apply for unemployment insurance instead of emergency sick leave/family leave is they determine they will be paid more by UI than the 2/3 of regular pay?

An employee is eligible for UI if they have been laid off, furloughed, or have had their hours reduced. If none of those situations apply, they are not eligible for UI. If they quit their job to try to get UI benefits, they will not be eligible.

Have you found out for sure if the government is going by EIN for employee count if you have multiple entities? or total by ownership?

For purposes of FFCRA, Businesses must count:

Full-time and part-time employees within the United States (which includes any state of the United States, the District of Columbia, or any territory or possession of the United States).

Employees on leave.

Temporary employees who are jointly employed by you and another employer (regardless of whether the jointly employed employees are maintained on only your or another employer’s payroll).

Day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship).

Our understanding is that the head count methodology may be different for the CARES act, but we are not able to advise on that legislation.

If a business is “closed” but has some essential employees working (i.e. HR), are the working employees still eligible even though the business is “closed”?

If an employee is working and meets a qualified condition under EPSL/EFMLA, then they are eligible. For these purposes, a business that is “closed” is no longer operational and is not paying any employees.

Are “Stay Home” orders or Travel Health Notices recommending self quarantine after travel sufficient for reason #1?

This has been updated since the webinar–the DOL has changed their interpretation and does consider Stay at Home Orders the same as quarantine and will make employees eligible for EPSL, for the two weeks.

Are “Stay Home” orders or Travel Health Notices recommending self quarantine after travel sufficient for reason #1?

This has been updated since the webinar–the DOL has changed their interpretation and does consider Stay at Home Orders the same as quarantine and will make employees eligible for EPSL, for the two weeks.

Also, if we are not eligible for FFCRA and have employees with children home from school requiring the parent to care for them thus they’re unable to work, is there any job protected leave or wage replacement that may apply?

If your company doesn’t qualify for FFCRA, and your employee is unable to work or telework due to reasons out of their control, they may be eligible for unemployment insurance.

Could you please clarify if an EE over 65 years old is eligible for the EPSL, when there is work for them but it is recommended fort hem to stay home. In a recent webinar it was said that it was better to offer this benefit as  it was not 100% clear with the DOL they were not?

If an EE is considered high risk (eg: senior over 65)and can’t continue to work, can they get UI?

Employees are only eligible for EPSL if they fall under one of the six qualifying criteria. Employees are only eligible for unemployment if they are laid off, furloughed, or have reduced hours. Being over 65 in and of itself does not qualify an employee for EPSL/EFMLA or UI benefits.

What if an employee is self quarantine because she/he has a underlying respiratory condition, but has no documentation by her/his doctor?

Having an underlying respiratory condition in and of itself does not qualify an employee for EPSL/EFMLA benefits.

Can you explain the difference between eFMLA and EPSL again. I believe eFMLA is to care for a child or spouse , is that correct?

EPSL comes first and EFMLA is concurrent and after (we don’t know why they had to make it so confusing!). EPSL may pay 100% or 66%, depending on the qualifier, and is for two weeks. EFMLA is the job protected aspect and is unpaid for the first two weeks, then pays at 66% for ten weeks after the EPSL is done. 

Also, we began paying sick time on 3/16 (up to 40 hours, as per SD county).  With the new FFCRA, do employees then get an ADDITIONAL 80 as the law was effective 4/1, or an additional 40 as we already provided 40  (for a total of 80).

FFCRA provides for an additional 80 hours of PSL and 10 weeks of paid FMLA. Employers may not require an EE who qualifies for EPSL/EFMLA to use company provided PSL or PTO prior to utilizing EPSL/EFMLA.

Can the EPSL be taken intermittently for caring for child out of school? So just a few days a week,  and then does it cover up to 96 hours (equalling 12 weeks?)

Yes, EPSL/EFMLA can be taken intermittently to care for a child out of school, but only in whole day increments.

Furlough 

On furlough they HAVE to use all accrued vacation hours?  Won’t that mess up their UI benefits?  Yikes!

Can a furlough only be used when there is a lack of work for a short period of time?  If there is a lack of work and you plan to bring the employee back but don’t know when can you still consider it a furlough? Or is it better to lay off the employee and give them a final paycheck with accrued PTO?

Unless you expect the EE to come back to work in the same pay period, the Labor Commissioner has stated that EE’s on furlough should be paid out any accrued and unused vacation/PTO. There is no mandate on how long a furlough can last.

If an employee is planning to take a maternity leave later this year and uses EPSL or EFMLA, is their maternity leave reduced by the number of weeks used for EPSL or EFMLA?

It depends. You may take a total of 12 workweeks of leave during a 12-month period under the FMLA, including the Emergency Family and Medical Leave Expansion Act. If you take some, but not all 12, workweeks of your expanded family and medical leave by December 31, 2020, you may take the remaining portion of FMLA leave for a serious medical condition, as long as the total time taken does not exceed 12 workweeks in the 12-month period. Please note that expanded family and medical leave is available only until December 31, 2020; after that, you may only take FMLA leave.

Leave

For on call EEs that qualify for EPSL , what is the best way to determine the avg of hours work? Some employees at my company haven’t worked in the last 2-3 weeks.

You should calculate how many hours of leave your seasonal employee is entitled to take each day. Because your employee works an irregular schedule, this is equal to the average number of hours each day that he or she was scheduled to work over the period of employment, up to the last six months.

Pay

If we have employees that are teleworking, is the company obligated to pay expenses? Like internet bill or phone bill?

In California, companies are required to reimburse employees for “necessary” business expenses. If an employee is working from home because the employer is requiring it, we recommend paying a stipend for internet/mobile phone usage. Of course, the employee’s entire family plan is not “necessary” for the business. We recommend you determine a methodology for how you will calculate the necessary expense and implement it consistently.

If we get a Small Business loan under CARES, but a few of our construction sites have been deemed essential – what can we do if an employee refuses to work?  Do we still have to pay them?

Your bank would need to advise you on the provisions under the CARES act.

Can an Employee’s pay of rate be reduced if the employer plans to participate in the workshare program?

Yes.

Can an employer deduce an employee rate of pay below minimum wage and reduce their hours  so that the employee can qualify for workshare?

An employer cannot deduct pay to be below minimum wage. An employer can deduct pay down to minimum wage and/or cut hours.

We have a few staff that are still working onsite since we are an essential business. We have hourly employees that are part of this group. The Ops Director wants to change their “normal” work schedule to be Tues, Thurs, Sat working 10-10-4 hours on those days. He cited CA Labor Code 511. I am hesitant to implement this for various reasons… Have you seen other employers changing their “normal” work schedules during this COVID-19 pandemic and are there any risks changing work schedules? Thanks!

You can change work schedules. We recommend giving employees advance notice so they can adjust personal schedules. In the situation you described, hourly employees would need to be paid two hours of Overtime for the ten hour days.

If an exempt employee  reduced salary, when can this be effective and what notice is required?  If the reduction is 20%, then what happens to the hours?  Can the exempt employee apply for partial UI?

Can an exempt employee with a reduced salary apply for partial unemployment?

Reduced salary can be effective in the pay period following notification. Exempt employees are paid based on work completed, rather than hours worked, so you could technically reduce an employees salary and still expect the same hours as long as they are being paid the weekly equivalent of two times minimum wage based on a forty hour workweek. (That is $1040 for $13 minimum wage, $960 for $12 minimum wage). UI looks at reduction in pay when looking at maximum benefits eligibility, so the employee may be eligible for unemployment.

For Emergency Family Leave that is paid at 2/3 of an employee’s pay and capped at $200/day, can an employee use their accrued PTO to make up the difference for that day’s pay?  For example record 8 hours EFML @ 2/3 pay or $200, then record additional 2.67 hours (or whatever # of hours needed to make them whole) of PTO to get paid for the remaining 1/3 pay?

Yes, if the company allows, EE’s can use PTO to cap the EPSL. The PTO amount would not be applicable to the employer tax credit.

Can company wide pay cut be issued retro actively in that pay period that it was announced?

You mentioned that the er had to give notice before reducing wages, how much notice is required?

For at-will employees, compensation cuts must be announced in writing before the start of the work covered by the new pay rate, and preferably in advance of the start of the pay period in which the cut is effective, to avoid both complexities in deducting from an exempt employee’s salary and in overtime calculations with two different rates for non-exempt employees. The written notice, preferably a memorandum individually addressed to each employee, should provide the reason for the reduction in compensation, when the cut in compensation is set to take place, and what type of pay is being cut (i.e. salary or hourly pay, versus incentive pay.)

With the Emergency Sick Leave and Extended Family Leave, when the regulation says to pay 2/3 pay, can we pay full pay at our option and still get the tax credit as long as we don’t exceed the daily max of $200?

You would only get the tax credit for the amount equal to 2/3 of the employees regular pay.

What did Molly mean when she said if an employee is working reduced hours, the employer wouldn’t get made whole?? Does this have to do w/ PPP?

We can’t speak to the PPP. Your bank or CPA should be able to help you with that plan. Regarding EPSL/EFMLA, employers will only be reimbursed for the amount that they pay toward those benefits.

We have put quite a few employees on furlough and they are collecting UI. After this is all over, we are worried some of our employees may just want to continue collecting unemployment and not return to work. At this point, will we be able to argue the UI claim as they refused employment?

Yes. UI will be sending you regular notices. If work is available, you can state that on the UI notification and the employee will not longer be eligible for UI benefits.

With 2/3rds of regular rate of pay calculation, are you required to pay California minimum wage per hour if the 2/3rds would drop them below the minimum wage?

The bill requires that the employer pay not less than the greater of 1) the employee’s regular rate of pay, 2) the minimum wage rate under FLSA, or 3) the minimum wage rate in effect for such employee in the applicable State or locality where the employee is employed. For the care of family members, “the employee’s required compensation…shall be two-thirds of the amount described in clause B. So that would be 2/3 of regular rate of pay, even if that rate is minimum wage. Why they felt the need to spell it out like that when someone’s regular rate of pay would not be less than minimum wage, we don’t know.

The DOL’s website refers to tips as part of the regular rate of pay, associated with tip credits.  Since CA doesn’t allow tip credits, I wanted to confirm that tips are not included in calculating an employees regular rate of pay for EPSL and EFMLA.

That is correct. California does not allow tip credits, so tips are not part of regular rate of pay.

For the Paycheck Protection Program loans with CARES, are tips considered part of gross wages to be reported?

We can’t speak to the nuances of the PPP. Your bank or CPA will likely be able to respond to that.

We are an essential business & social distancing measures far exceed what is required/recommended. I have a key employee that is stating that he can’t come in due to the stay at home order. I am not required to pay him correct? What would be best, discretionary leave, furlough or lay off & what are some considerations?

He mentioned in an email today that he is going to file for UI & I told him that he’s not getting paid b/c he’s not reporting for work. I also told him that I would tell the same to the EDD if asked. Anything I need to do to cover myself as it relates to UI?

If you would have furloughed or laid-off the employee otherwise, do so. If you have work available and the employee is refusing, they would not be eligible for unemployment. We  recommend putting the employee on an unpaid discretionary leave. We do not recommend “furloughing” an employee just for the sake of allowing that employee to receive unemployment benefits. That could be perceived to be fraudulent.

We have a portion of EEs working from home and another population designated as “furlough” since they require company facilities to perform their duties. For those that are furloughed, we’ve allowed them to exhaust PTO and even borrow PTO time up to 4wks total. I’m concerned about the requirement to pay PTO when we furloughed them which we didn’t do vs. allowing them to exhaust (and even borrow time) for a month.

You have paid them their PTO, and that is what is important. They are now eligible to apply for UI. If this were to happen again in the future (let’s hope not!), we recommend paying out PTO to furloughed employees so they can put that in the bank and collect UI without the PTO impacting their benefit.

During a furlough, is it required that employee tap into their PTO, or can they be on furlough unpaid, saving their PTO for when they return?

Unless you expect the EE to come back to work in the same pay period, the Labor Commissioner has stated that EE’s on furlough should be paid out any accrued and unused vacation/PTO.

You may not have the answer to this and I’m not finding any the answers on EDD as its all so new and changing constantly. Will all people applying for unemployment benefits  be receiving the extra $600 in full? We have have a lot of part time employees who are temporarily laid off and we are debating applying for SBA as we would want to pay and keep our employees but it seems they may be making more through unemployment benefits. We also don’t have enough work from everyone to work from home.

We can’t speak to how the loans work, but our understanding is that the additional $600 will be provided in addition to the State UI maximum benefit. As of April 6, 2020, the EDD has not provided information on when the program will be in place.

If FFCRA doesn’t apply to my company (based on our headcount) do we still have to post the new poster?

No.

Poster

The new DOL poster regarding FFCRA is that going to be mailed directly to employers or should I request it and pay from DOL? I am new with HR that is why I am asking.

The poster is available at no cost through our website. Go on the Frequently Asked HR Questions tab and scroll to the bottom to get a link for posters in both English and Spanish.

Is your power point available on your website?

Will slides from presentation be available for download after the session?

Will you be sharing the slide deck following today’s session?

We have posted the webinar on our website. If you just want to read through the slides you can fast forward.

Do you have a checklist we can use to send to employees working from home (make sure they are taking lunches, breaks, etc. plus keep regular work hours)?

Reach out to Jen or Molly and we can send you a sample telecommuting policy.

Unemployment Insurance

Hi, who pays for unemployment? The state or the employer, and how does that work?

State UI is paid by employers through payroll taxes. The additional federal unemployment benefit will be paid by the federal government (through all our taxes).

Are employers at risk for Workers Comp claims, for exposing their healthy employees to an unhealthy employee?

Possibly. If an employee claims that they got Coronavirus at work, provide them with a Workers Comp claim form. We expect WC carriers will fight the claims, but things are changing all the time.

Workers Comp

Quick explanation of hazard pay?

Hazard pay means additional pay for performing hazardous duty or work involving physical hardship. Work duty that causes extreme physical discomfort and distress which is not adequately alleviated by protective devices is deemed to impose a physical hardship.

What if

If the company changed exempt employees to non-exempt  during this pandemic, will there be automatic labor board red flags when employees are later the company makes them exempt again?

Exemption status is based on the duties test and the salary test. If you are changing the exemption status due to not meeting the salary test, you should be fine.

If the employee is not identified, how can you let others know who may have had contact socially (in the lunchroom or bathroom, for instance) that employer is not aware of?!

You will want to interview the employee to find out who they came in contact with. You could also put a notice in break rooms and bathrooms stating that there was someone exhibiting signs of COVID-19 infection the the space in the past two weeks, but not identify who the person is.

Can you cover what we should ask EE’s directly when they call in sick?

You can ask if they are exhibiting signs of Coronavirus explicitly. If they say “no”, you can ask if they believe themselves to be contagious or are running a fever. Other than that, stay away from asking about details.

Can employers require employees to return to working onsite after the pandemic, if they have been working remotely during the pandemic?

Employers are not required to allow employees to telework, but if it has been a successful option, you may want to rethink any mandatory requirements to work in the office. The ability to telework can lower facilities expenses and be a big morale booster, especially if your location is in one of the heavy traffic commutes.

Can you provide more info as to how the reduced hours program works & what we have to do as employers? How does this work w/ UI?

My company applied for work sharing on march 20 with start date of 03.22.20, I still haven’t received the forms from EDD to start filing as a company. what should i do? what are other employer’s experience?

Employee’s can apply for partial unemployment if they are working reduced hours. The Workshare program is different, but doesn’t seem to be efficient in the current situation.

I want to know too about the work share approved!!!

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