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FFCRA

What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act?  

As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave? 
 

We have several commonly owned companies. Will each of them be considered a separate employer or will they be treated as one employer for purposes of the 500-employee threshold? 

What does the Families First Coronavirus Response Act do for time off?  

If an employee is home with their child because his or her school or place of care is closed, or child care provider is unavailable, does the employee get paid sick leave, expanded family and medical leave, or both—how do they interact?

What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?

What documents does the employee need to give the employer to get paid sick leave or expanded family and medical leave? 

What does it mean to be unable to work, including telework for COVID-19 related reasons?

If an employee elects to take paid sick leave or expanded family and medical leave, must the employer continue health coverage?

May an employee use their employer’s preexisting leave entitlements and FFCRA paid sick leave and expanded family and medical leave concurrently for the same hours?

If I am an employer, may I supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?

May the employee take paid sick leave or expanded family and medical leave intermittently while teleworking?

May the employee take paid sick leave intermittently while working at the usual worksite (as opposed to teleworking)?

If the employer reduces employees’ scheduled work hours, can employees use paid sick leave or expanded family and medical leave for the hours that the employees are no longer scheduled to work?

Who is a son or daughter?

Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?

Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

Who is an emergency responder? 

If an employer closed the worksite before April 1, 2020 (the effective date of the FFCRA), can the employee still get paid sick leave or expanded family and medical leave?   

If the employer closes the worksite on or after April 1, 2020 (the effective date of the FFCRA), but before the employee goes out on leave, can the employee still get paid sick leave and/or expanded family and medical leave? 

If my employer closes the worksite while the employee is on paid sick leave or expanded family and medical leave, what happens? 


If the employer is open, but furloughs the employee on or after April 1, 2020 (the effective date of the FFCRA), can the employee receive paid sick leave or expanded family and medical leave? 

If the employer closes the worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells the employee that it will reopen at some time in the future, can the employee receive paid sick leave or expanded family and medical leave? 

FFCRA EPSLA

What does the emergency paid sick leave under the Families First Coronavirus Response Act cover?

What is the emergency paid sick leave under the Families First Coronavirus Response Act? 

Who does this emergency paid-leave provision apply to? 

How many hours must an employer provide of emergency paid-leave? 

Does the Emergency Sick Leave Act allow employers to require employees first exhaust other leave, including paid time off, before they can use the Emergency Sick Leave Act Benefit? 

How will the paid sick time component intersect with the Michigan Paid Medical Leave Act. 

What are the other conditions or restrictions of the Emergency Sick Leave benefit? 

How much pay in the paid leave must an employer provide? 

How does this Act impact multi-employer bargaining agreements? 

May an employee take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?

The employee elected to take paid sick leave and is currently in a waiting period for the employer’s health coverage. If the employee is absent from work on paid sick leave during the waiting period, will health coverage still take effect after the employee completes the waiting period on the same day that the coverage would otherwise take effect?

If the employee uses but does not exhaust paid sick leave before, is the remaining time forfeited? 


Is all leave under the FMLA now paid leave? 

 

If the employee remains on leave beyond the maximum period of expanded family and medical leave, does the employee have a right to keep their health coverage?

 

Does an employee qualify for leave for a COVID-19 related reason even if the employee has already used some or all of their leave under the Family and Medical Leave Act (FMLA)?

 

May an employee take expanded family and medical leave intermittently while a child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if the employee is not teleworking? 

 

How does the “for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar” language in the FMLA definition of “employer” work under the Emergency Family and Medical Leave Expansion Act?

FFCRA Refundable Tax Credits

As an employer, how do I access the refundable tax credit? 


If I want to pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can I do so and claim a tax credit for the entire amount paid to them? 

FFCRA Small Business Exemption 

When is an employer with 25 or less employees exempt from the law’s job protection requirement? 

If providing childcare-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption? 

FFCRA Examples

May an employee take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?  

If an employee is home with their child because his or her school or place of care is closed, or childcare provider is unavailable, do they get paid sick leave, expanded family and medical leave, or both—how do they interact? 

Are the paid sick leave and expanded family and medical leave requirements retroactive? 

Unemployment

How does unemployment insurance impact us during this time? 

How should employers work with employees?  

If I have hourly employees that work various hours depending on the workload, how do I calculate their wages?  

I have owners that are also employees but now cannot work remotely. Can they go on FMLA or are they exempt? 

If team members have already filed for unemployment and now should be FMLA, what process do I take to get them on the right path? 

Can FMLA and Unemployment Insurance be leveraged together? 

Regarding the Governor's Executive Order on Expanding Unemployment Benefits for Michigan Workers, how do I communicate a layoff? 

How will my business be impacted if I need to layoff workers? 


Under the governor’s order, who would unemployment benefits would be extended to? 

What is work share? 

What if we have an employee on temporary layoff who doesn’t want to come back when recalled?

As an owner of a company that closes down because of COVID-19, am I entitled to unemployment?

Michigan Law

Does Michigan Paid Medical Leave cover pandemic situations like school closings?  

A public emergency is declared, and work is canceled as a result. Do workers have to be paid? 
 
What is considered an Essential Worker under the Governor’s Stay-at-Home Executive Order? 

Employment

An employee reports to work with a bad cough and/or fever. What questions can HR or a manager ask of this employee?

If one of our employees is quarantined, what information can we share with our employees? Who can we share it with?

Can HR send an employee home who comes to work sick?

Can HR require a fitness for work before allowing the formerly sick employee to return to work?

We have told employees in affected areas to work from home until further notice. Can we monitor their email and phone activity to ensure that they are actually working?

Can we fire an employee who has complained on social media that we do not do enough to protect our employees from COVID-19?


Can we fire an employee who refuses to come to work because of concerns about contracting COVID-19?

If an employer is hiring, may it screen applicants for symptoms of COVID-19?

May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam?

May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

How do I help my employees deal with the school closures?

Can we require employees to cancel scheduled vacations and to come into work?

Can we be held liable if one of our employees becomes infected with COVID-19 within the scope of their employment?

OSHA 

Does OSHA require non-healthcare employees to wear respirators?  

Is COVID-19 a recordable illness for MIOSHA purposes? 

What if an employee requests to wear some type of mask as an accommodation? 

Travel Related Issues

A worker has recently traveled overseas to a country that isn't a high-risk Coronavirus location. Can the employer ask them to stay home upon their return? 

Can an employer restrict travel to all locations under a CDC travel advisory? 

What if employees share that they plan to travel to a high-risk area/country? 

Business Policies

How do I implement remote work for my employees? 

Should I create a business continuity plan?  

Where can I find the USDOL Wage and Hour Guidance?

FLSA Issues

Can an employer make prospective reduction in pay for a salaried exempt employee due to the economic downturn?

FFCRA

What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act? 
The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.

As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave? 
You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 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. In making this determination, you should include 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); and 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). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

We have several commonly owned companies. Will each of them be considered a separate employer or will they be treated as one employer for purposes of the 500-employee threshold?
Separate companies will be treated as separate employers unless they are sufficiently integrated to be considered a single enterprise under the FLSA for purposes of the new paid sick leave or a single employer under the FMLA for purpose of the new FMLA leave. In order to constitute a single enterprise under the FLSA, the activities sought to be aggregated must be "performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor." 

The test for determining whether related companies will be considered a single employer or separate companies under the FMLA is found at 29 CFR 825.104. Generally, separate companies will be treated as separate employers unless they are sufficiently integrated to be considered a single employer. That test considers the following factors: (i) common management; (ii) interrelation between operations; (iii) centralized control of labor relations; and (iv) degree of common ownership/financial control.

What does the Families First Coronavirus Response Act do for time off? 

The law provides employees two new protection:  The Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act (FMLA Expansion). Each have their own eligibility requirements and differ in how they work.

The two may overlap.  Because both the FMLA Expansion and the Emergency Paid Sick Leave Act cover instances where leave is needed to take time off to care for an employee’s son or daughter if the child’s school or place  of care has be closed or the child care provider is unavailable due to COVID-19 precautions.

Notably, the Emergency Paid Sick Leave Act, which has no waiting period, would actually allow the employee to obtain paid leave during the 10-day waiting period that is required under the FMLA Expansion. Because the 2/3 reimbursement would kick in due to the Emergency Leave being caregiver leave, the amount due to the employee from the employer would be the same under both the FMLA Expansion and the Emergency Paid Sick Leave.

If an employee is home with their child because his or her school or place of care is closed, or child care provider is unavailable, does the employee get paid sick leave, expanded family and medical leave, or both—how do they interact?
The employee may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the employee elects to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, the employee will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.

What does it mean to be unable to work, including telework for COVID-19 related reasons?
The employee is  unable to work if the employer has work for the employee and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents the employee from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework.

If the employee and  employer agree that the employer will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then the employee is  able to work and leave is not necessary unless a COVID-19 qualifying reason prevents the employee from working that schedule.

If an employee elects to take paid sick leave or expanded family and medical leave, must the employer continue health coverage? 
If your employer provides group health coverage that you’ve elected, you are entitled to continued group health coverage during your expanded family and medical leave on the same terms as if you continued to work. If you are enrolled in family coverage, your employer must maintain coverage during your expanded family and medical leave. You generally must continue to make any normal contributions to the cost of your health coverage.

May an employee use their employer’s preexisting leave entitlements and FFCRA paid sick leave and expanded family and medical leave concurrently for the same hours? 
No. If the employee is eligible to take paid sick leave or expanded family and medical leave under the FFCRA, as well as paid leave that is already provided by the employer, unless the employer agrees you must choose one type of leave to take. An employee may not simultaneously take both, unless the employer agrees to allow the employee to supplement the amount received from paid sick leave or expanded family and medical leave under the FFCRA, up to your normal earnings, with preexisting leave. For example, if the employee is receiving 2/3 of your normal earnings from paid sick leave or expanded family and medical leave under the FFCRA and the employer permits, the employee may use their preexisting employer-provided paid leave to get the additional 1/3 of the employee’s  normal earnings so that the employee receive your full normal earnings for each hour.

If I am an employer, may I supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?
If your employee chooses to use existing leave you have provided, yes; otherwise, no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including Federal employees.

May the employee take paid sick leave or expanded family and medical leave intermittently while teleworking? 
Yes, if the employer allows it and if the employee is unable to telework your normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, the employee and employer may agree that the employee may take paid sick leave intermittently while teleworking. Similarly, if the employee is prevented from teleworking the normal schedule of hours because of the need to care for a child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employee and employer may agree that you can take expanded family medical leave intermittently while teleworking.

The employee may take intermittent leave in any increment, provided that the employee and employer agree. For example, if the employee agrees on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.

May the employee take paid sick leave intermittently while working at the usual worksite (as opposed to teleworking)?
It depends on why the employee is taking paid sick leave and whether the employer agrees. Unless the employee is teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:

- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- The employee have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Unless the employee is teleworking, once the employee begins taking paid sick leave for one or more of these qualifying reasons, the employee must continue to take paid sick leave each day until the employee either (1) uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave. This limit is imposed because if the employee is sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

If the employer reduces employees’ scheduled work hours, can employees use paid sick leave or expanded family and medical leave for the hours that the employees are no longer scheduled to work?
No. If the employer reduces work hours because it does not have work for employees to perform, employees may not use paid sick leave or expanded family and medical leave for the hours that employees are no longer scheduled to work. This is because employees are not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19.

Who is a son or daughter? 
Under the FFCRA, a “son or daughter” is your own child, which includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child. For additional information about in loco parentis, see Fact Sheet #28B: Family and Medical Leave Act (FMLA) leave for birth, placement, bonding or to care for a child with a serious health condition on the basis of an “in loco parentis” relationship.

In light of Congressional direction to interpret definitions consistently, WHD clarifies that under the FFCRA a “son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability. For additional information on requirements relating to an adult son or daughter, see
Fact Sheet #28K

Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?
The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. 

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Who is an emergency responder? 
For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

If an employer closed the worksite before April 1, 2020 (the effective date of the FFCRA), can the employee still get paid sick leave or expanded family and medical leave? 
 
No. If, prior to the FFCRA’s effective date, the employer sent employees home and stops paying employees because it does not have work for employees to do, employees will not get paid sick leave or expanded family and medical leave but employees may be eligible for unemployment insurance benefits. This is true whether the employer closes the worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive.

If the employer closes the worksite on or after April 1, 2020 (the effective date of the FFCRA), but before the employee goes out on leave, can the employee still get paid sick leave and/or expanded family and medical leave? 
No. If the employer closes after the FFCRA’s effective date (even if the employee requested leave prior to the closure), the employee will not get paid sick leave or expanded family and medical leave but may be eligible for unemployment insurance benefits. This is true whether the employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. 

If my employer closes the worksite while the employee is on paid sick leave or expanded family and medical leave, what happens? 

If the employer closes while the employee is on paid sick leave or expanded family and medical leave, the employer must pay for any paid sick leave or expanded family and medical leave used before the employer closed. As of the date the employer closes the worksite, the employee is no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether the employer closes the worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. 

If the employer is open, but furloughs the employee on or after April 1, 2020 (the effective date of the FFCRA), can the employee receive paid sick leave or expanded family and medical leave? 
No. If the employer furloughs the employee because it does not have enough work or business for employees, the employee is not entitled to then take paid sick leave or expanded family and medical leave. 

If the employer closes the worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells the employee that it will reopen at some time in the future, can the employee receive paid sick leave or expanded family and medical leave? 
No, not while the worksite is closed. If the employer closes your worksite, even for a short period of time, the employee is not entitled to take paid sick leave or expanded family and medical leave.

FFCRA EPSLA

What does the emergency paid sick leave under the Families First Coronavirus Response Act cover?
The emergency paid-leave provisions that would require employers to provide paid sick time for the following reasons:

(1) The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

(4) The employee is caring for an individual who is subject to an order as described in reason for use (1) or has been advised as described in reason for use (2) (as described above).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

The Emergency Paid Sick Leave Act states that employers with 500 or less employees must provide paid sick time immediately (as opposed to the 10-day waiting period in the FMLA Expansion).

Who does this emergency paid-leave provision apply to?
All employers.  Employers with more than 500 employees are exempted from the paid-leave requirement. However, all employees, regardless of the duration of employment or full- or part-time status, are eligible if they meet one of the above-listed reasons.

How many hours must an employer provide of emergency paid-leave?
Full-time employees would be eligible for up to 80 hours of paid emergency leave. Part-time employees would be eligible to receive the number of hours worked, on average, over a two-week period. The leave would terminate immediately once the reason for the leave has ended, and the employee would have to return to work for his or her next scheduled shift.

Does the Emergency Sick Leave Act allow employers to require employees first exhaust other leave, including paid time off, before they can use the Emergency Sick Leave Act Benefit?
No.  An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time under this Act.

How will the paid sick time component intersect with the Michigan Paid Medical Leave Act?
The paid sick time component and state-mandated accrued leave would run consecutively. In other words, the employee would be able to choose in which order they take their state-mandated accrued leave versus their leave guaranteed under the paid sick leave law. The  paid sick time provision is also available for immediate use regardless of an employee's duration of employment.

What are the other conditions or restrictions of the Emergency Sick Leave benefit?
It does not carry over from year to year, and unused paid sick time is not payable upon separation from employment.   The employer may not require, as a condition of providing paid sick time, that the employee search for or find a replacement employee to cover the hours during which the employee is using sick time. The employer may not discriminate or retaliate against the employee for taking leave under the Emergency Sick Leave Act.  The employer may require employee follow reasonable notice procedures to continue to receive paid sick time.

How much pay in the paid leave must an employer provide?
The amount of pay depends on which reason the time off is used.  Specifically, covered reasons (1) through (3) above must be paid at the 100% rate, while covered reasons (4) through (6) above can be paid at the 2/3 rate. 

In addition, PST payments can be capped as follows: (I) $511 per day and $5,110 in the aggregate for covered reasons (1) through (3) and (II) $200 per day and $2,000 in the aggregate for covered reasons (4) through (6).  However, while an employer appears able to pay an employee an amount that is greater than the above caps, the employer would not receive any corresponding additional tax credit.

How does this Act impact multi-employer bargaining agreements?

An employer signatory to a multi-employer collective bargaining agreement may, consistent with its bargaining obligations and its collective bargaining agreement, fulfill its obligations by making contributions to a multi-employer fund, plan, or program based on the hours of paid sick time each of its employees is entitled to under the Act while working under the multi-employer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program based on hours they have worked under the multi-employer collective bargaining agreement for emergency paid sick leave.  Employees who work under a multi-employer collective bargaining agreement into which their employers make contributions (as outlined above) may secure pay from such fund, plan, or program based on hours they have worked under the multi-employer collective bargaining agreement for emergency paid sick leave.


May an employee take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?
No.  The employee may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which the employee receives paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.

The employee elected to take paid sick leave and is currently in a waiting period for the employer’s health coverage. If the employee is absent from work on paid sick leave during the waiting period, will health coverage still take effect after the employee completes the waiting period on the same day that the coverage would otherwise take effect? 
Yes. If the employee is on employer-provided group health coverage, the employee is entitled to group health coverage during the paid sick leave on the same terms as if the employee continued to work. Therefore, the requirements for eligibility, including any requirement to complete a waiting period, would apply in the same way as if the employee continued to work, including that the days the employee is on paid sick leave count towards completion of the waiting period. If, under the terms of the plan, an individual can elect coverage that becomes effective after completing the waiting period, the health coverage must take effect once the waiting period is complete.

If the employee uses but does not exhaust paid sick leave before, is the remaining time forfeited? 
No.  If the employee no longer has a qualifying reason for taking paid sick leave before the employee exhaust your paid sick leave, the employee may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

In contrast, if the employee and employer agree, the employee may take paid sick leave intermittently if the employee is taking paid sick leave to care for a child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if the child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employee may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.


FFCRA EFMLA

What is the Emergency Family and Medical Leave Expansion Act?
This law expands FMLA rights for the duration of the pandemic crisis.  This law would apply to all employers with less than 500 employees. There is no minimum employee number.  Employees with less than 50 employees may be eligible for an exemption if the obligations would jeopardize the viability of the business as a going concern.  What that means is still unclear. 

The law would expand employee FMLA under this situation to those employees who have been employed for at least 30 days.  Normal FMLA requirement is 1,250 hours over a 12-month period.

What are the conditions for taking FMLA under this law?
FMLA eligibility has been expanded to cover a “qualifying need related to a public health emergency.”  This situation is defined as “[i]Instances where the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”  Note that this include situations of telework.

An employee can take leave for caring for an “individual.”  This term “individual” is, though, undefined.  In the original House bill, the term was very expansive to include grandparents, domestic partners, etc.

This law does have a special rule which would allow an employer who is a health care provider or an emergency responder to exclude employees from the new amendments to the FMLA.

How much notice must an employee provide to using the expanded FMLA  paid leave?
When an employee uses public health emergency leave related to school or childcare closures (see above) and the leave is foreseeable, an employee must provide the employer with such advance notice of leave as is practicable.  Otherwise, notice is similar to FMLA notice (which in practice is at the time or after the employee has need for it).

How does Paid time off work?
The first 10 days for which an employee takes leave could consist of unpaid leave. An employee could elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. Employers could not require the employee to make the substitution.
   
After the 10, days, employers would be required to pay for the leave an amount that is not less than 2/3 of an employee’s regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work or the number of hours calculated for employees who have varying schedules.  For full-time employees, it would be a total of 80 hours. Part-time employees would receive a prorated amount.

In addition, there are special rules for multi-employer plans that appear to give these employers more compliance flexibility than is provided to other employers.


How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?
A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.   If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

When calculating pay due to employees, must overtime hours be included?
Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.   However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.  If the employee’s schedule varies from week to week, please see the answer to Question 5, because the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee/  Please note that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.

What is the regular rate of pay for purposes of the FFCRA? 
For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave.[2] If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.  If you are paid with commissions, tips, or piece rates, these wages will be incorporated into the above calculation.  You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

37.  What is the Emergency Family and Medical Leave Expansion Act?
This law expands FMLA rights for the duration of the pandemic crisis.  This law would apply to all employers with less than 500 employees. There is no minimum employee number.  Employees with less than 50 employees may be eligible for an exemption if the obligations would jeopardize the viability of the business as a going concern.  What that means is still unclear.

The law would expand employee FMLA under this situation to those employees who have been employed for at least 30 days.  Normal FMLA requirement is 1,250 hours over a 12-month period.

38.  What are the conditions for taking FMLA under this law?
FMLA eligibility has been expanded to cover a “qualifying need related to a public health emergency.”  This situation is defined as “[i]Instances where the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”  Note that this include situations of telework.

An employee can take leave for caring for an “individual.”  This term “individual” is, though, undefined.  In the original House bill, the term was very expansive to include grandparents, domestic partners, etc.

This law does have a special rule which would allow an employer who is a health care provider or an emergency responder to exclude employees from the new amendments to the FMLA.

39.  How much notice must an employee provide to using the expanded FMLA  paid leave?
When an employee uses public health emergency leave related to school or childcare closures (see above) and the leave is foreseeable, an employee must provide the employer with such advance notice of leave as is practicable.  Otherwise, notice is similar to FMLA notice (which in practice is at the time or after the employee has need for it).

40.  How does Paid time off work?
The first 10 days for which an employee takes leave could consist of unpaid leave. An employee could elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. Employers could not require the employee to make the substitution.

Do I have to restore a job to an employee under the expanded FMLA Job Restoration Act?
As a general rule, an employee who is taking FMLA must have their job restored. However, the law’s job restoration requirements (in Section 104(a)(1) of the FMLA) would not apply to employees of an employer with fewer than 25 employees where the following conditions are met:

A.  The employee takes leave under the public health emergency provision;
B.  The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during the leave period; 
C.  The employer makes reasonable efforts to restore the employee to a position equivalent to the position that the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment; 
D.  Where the employer’s reasonable efforts under subparagraph (C) fail, the employer makes reasonable efforts for a one-year period beginning on the earlier of the date of the qualifying need or 12 weeks following the leave’s commencement, to contact the employee if an equivalent position becomes available.

Is all leave under the FMLA now paid leave? 
No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

If the employee remains on leave beyond the maximum period of expanded family and medical leave, does the employee have a right to keep their health coverage?
If the employee does not return to work at the end of the expanded family and medical leave, the employee should check with the employer to determine eligibility to keep your health coverage on the same terms (including contribution rates). If the employee is no longer eligible, the employee may be able to continue coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA).

Does an employee qualify for leave for a COVID-19 related reason even if the employee has already used some or all of their leave under the Family and Medical Leave Act (FMLA)? 
If the employee is an eligible employee, the employee is entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave has been taken under the FMLA.  However, if the employer was covered by the FMLA prior to April 1, 2020, the eligibility for expanded family and medical leave depends on how much leave was already taken during the 12-month period that the employer uses for FMLA leave. An employee may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period.  If an employee has taken some, but not all, 12 workweeks of the leave under FMLA during the current 12-month period determined by your employer, the employee may take the remaining portion of leave available. If the employee has already taken 12 workweeks of FMLA leave during this 12-month period, the employee may not take additional expanded family and medical leave.

May an employee take expanded family and medical leave intermittently while a child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if the employee is not teleworking? 
Yes, but only with the employer’s permission. Intermittent expanded family and medical leave should be permitted only when the employee and employer agree upon such a schedule. For example, if  the  employer and employee agree, the employee may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while the child is at home because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.

How does the “for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar” language in the FMLA definition of “employer” work under the Emergency Family and Medical Leave Expansion Act? 
The language about counting employees over calendar workweeks is only in the FMLA’s definition for employer. This language does not apply to the Emergency Family and Medical Leave Expansion Act for purposes of expanded family and medical leave. Employers should use the number of employees on the day the employee’s leave would start to determine whether the employer has fewer than 500 employees for purposes of providing expanded family and medical leave and paid sick leave.

 

FFCRA Refundable Tax Credits

Are these refundable tax credits?

Yes. The law provides refundable payroll tax credits, subject to certain limitations, through 2020 to employers to cover wages paid to employees while they take time off under the law's sick leave and family leave programs, for up to 10 days.  The sick leave credit would be for wages up to $511/day or $200/day if the sick leave is to care for a family member or child following the child’s school closing.  The family leave credit would be for wages up to $200/day ($10,000/maximum) while the employee is receiving paid leave.

The law would also provide for a similar refundable credit against the self-employment tax for up to 10 days.  One difference between employer and self-employed is that self-employed individuals could receive a family leave credit for as many as 50 days multiplied by the lesser of $200 or their average self-employment income.

In determining the total amount of an employer’s qualified sick leave wages paid for a calendar quarter, the total number of days that the employer can take into account with respect to a particular employee for that quarter cannot exceed 10 days minus the total number of days taken into account with respect to such employee for all previous quarters.

The amount of the paid sick leave credit that is allowed for any calendar quarter cannot exceed the total employer portion of FICA Tax imposed on all wages paid by an employer to all of its employees during such quarter. If the amount of the credit that would otherwise be allowed is so limited, the amount of the limitation is treated as an overpayment of tax by the employer, the same as if the employer had actually overpaid the employer’s portion of FICA Tax.  Accordingly, the IRS will pay or credit to the employer the amount of the deemed overpayment.  Also, an employer who receives a credit for PST must include the amount of the credit in gross income.

This approach is intended to prevent the employer from realizing a double benefit (i.e., a windfall) -- one being the receipt of the credit and the other being a tax deduction for the paid sick leave wages. This will not nullify the tax credit, but by adding the amount of the credit to gross income, it offsets the tax deduction.

An employer must exclude any wages taken into account in determining the paid sick leave credit when determining the paid family and medical leave tax credit under Internal Revenue Code Section 45S.  For any discussion of tax credits, please refer to your accountant and legal counsel.

As an employer, how do I access the refundable tax credit?
When employers pay their employees, they are required to withhold from their employees’ paychecks federal income taxes and the employees' share of Social Security and Medicare taxes. The employers then are required to deposit these federal taxes, along with their share of Social Security and Medicare taxes, with the IRS and file quarterly payroll tax returns (Form 941 series) with the IRS.  Under guidance that will be released next week, eligible employers who pay qualifying sick or child-care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child-care leave that they paid, rather than deposit them with the IRS.   The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes and the employer share of Social Security and Medicare taxes with respect to all employees.   If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. Details from USDOL will be forthcoming.

Examples
• If an eligible employer paid $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $5,000 of the $8,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $3,000 on its next regular deposit date. 
• If an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments, and file a request for an accelerated credit for the remaining $2,000.
• Equivalent child-care leave and sick leave credit amounts are available to self-employed individuals under similar circumstances. These credits will be claimed on their income tax return and will reduce estimated tax payments.


If I want to pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can I do so and claim a tax credit for the entire amount paid to them? 

You may pay your employees in excess of FFCRA requirements. But you cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits.

FFCRA Small Business Exemption 

When is an employer with 25 or less employees exempt from the law’s job protection requirement?
Employers with fewer than 25 employees are exempt from the emergency FMLA leave's job protection requirement, provided the following conditions are met:
1) An employee takes emergency leave as provided under the FFCRA.
2) The leave-taking employee's position is eliminated due to "economic conditions" or other changes that affect the employer's operations resulting from the public health emergency.
3) The employer makes "reasonable efforts" to restore the employee to a position equivalent to the position the employee held when leave commenced, with equivalent pay, benefits and other terms and conditions.
4) If those "reasonable efforts" fail, the employer makes an effort to contact the employee if an equivalent position becomes available.

If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?
To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

FFCRA Examples

May an employee take 80 hours of paid sick leave for their self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act? 
No. They may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which they receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act. 

If an employee is home with their child because his or her school or place of care is closed, or child care provider is unavailable, do they get paid sick leave, expanded family and medical leave, or both—how do they interact? 
The employee may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. They may take both paid sick leave and expanded family and medical leave to care for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the employee elects to use existing vacation, personal, or medical or sick leave under the employer’s policy. After the first ten workdays have elapsed, the employee will receive 2/3 of their regular rate of pay for the hours they would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.  Please note that an employee can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

Are the paid sick leave and expanded family and medical leave requirements retroactive? 
No.  Additional resources can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Unemployment

How does unemployment insurance impact us during this time?
Governor Whitmer signed Executive Order 2020-10 to temporarily expand eligibility for unemployment benefits, effective immediately and lasting until 4/14/20.  This order: 

1.  Expands eligibility for unemployment benefits to individuals who leave work because of being immunocompromised, if they have COVID-19 or have been in contact with a confirmed case in the last 14 days, if they have a need to care for someone with a confirmed diagnosis or for family care as a result of a government directive;
2.  Waives work search requirements and in-person work registration requirements in Coronavirus claims;
3.  Requires employers to seek a registration and work search waiver when laying off employees due to Coronavirus Allows;
4.  Allows negative-balance employers to participate in the Work Share program;  
5.  Extends application eligibility period from 14 to 28 days;  
6.  Non-charges employer accounts for benefits resulting from layoffs and other unemployment because of an executive order requiring the closure or limitation of operations; and 
7.  Temporarily extends unemployment duration from 20 to 26 weeks, which will allow the State to qualify for Federal Extended Benefits, if authorized at a  later date.

If I have hourly employees that work various hours depending on the workload, how do I calculate their wages?  
Whatever their regular rate of pay was before their hours were reduced due to Coronavirus and then use the 2/3rd their regular rate that would be capped in the aggregate. 

I have owners that are also employees but now cannot work remotely. Can they go on FMLA or are they exempt? 

If the owners were reported on the quarterly report of wages they would pass the first qualification test. Secondly the UI applicant must be looking for and available for work. The emergency sick paid act local quarantine or isolation order requires employers to provide that benefit after all paid sick time off benefits apply. 

If team members have already filed for unemployment and now should be FMLA, what process do I take to get them on the right path? 
FMLA only matters for those with school age kids. For the rest of the employees, UIA is the only answer. I believe that leave of absence without pay is an internal designation. The unemployment filing does not delineate, so as long as your records show them as on leave, they should still qualify, even though they filed for unemployment.  

Can FMLA and Unemployment Insurance be leveraged together? 
No. If the employee is laid off, there is no FMLA. If the employee is having reduced hours (furlough), FMLA may apply for the reduced hours if the employee is sick or otherwise taking care of an family member. The new law being proposed will allow a specific definition of FMLA for the COVID-19. 

Regarding the Unemployment Expansion Executive Order, does the 80 hours of paid sick leave have to be in addition to current sick leave or if we already had it in place and they had 80 hours starting 1/1/2020, are we compliant?
Those who already offer 80 hours of sick leave are compliant. 

How will the employer be assessed for unemployment benefits for employees terminated/laid off due to COVID-19? 
As the executive order was written only businesses who have been ordered to shut down by executive order will have relief or no rating impact when it comes to employees filing for unemployment. 

The MiWAM waiver we submit is limited to 45 days, but the policy lasts 120 days. If this goes on past 45 days, we'll have to file for extension?
According to MiWAM for Employers: "If you are an employer temporarily laying off workers, you can request a waiver of the work registration and seeking work requirements for your laid off worker(s). This waiver can only be requested if you expect work to be available within 45-days of the individual’s last day of work and must be requested prior to the individual becoming payable for benefits. To request this waiver, employers can log into their Michigan Web Account Manager (MiWAM) at www.michigan.gov/uia and click on the Seeking Work Waiver link. Employers will be required to enter the business’s employee’s last day worked and back to work date. If the laid off worker does not return to work within 45-days of the last day worked, the individual will need to register for work and begin looking for work. The waiver cannot be extended and late waiver requests or requests submitted without the required information will not be granted. For questions or assistance, contact the Office of Employer Ombudsman online through your MiWAM account or at 855.484.2636. 

How do I communicate a layoff? 
ASE has a sample script you can use to speak with your employee(s).  

How will my business be impacted if I need to layoff workers? 

State Provides Guidance to Employers Contemplating Potential Layoffs 

Under the governor’s order, who will unemployment benefits be extended to?
Workers who have an unanticipated family care responsibility, including those who have childcare responsibilities due to school closures, or those who are forced to care for loved ones who become ill.  Workers who are sick, quarantined, or immunocompromised and who do not have access to paid family and medical leave or are laid off.  First responders in the public health community who become ill or are quarantined due to exposure to COVID-19.  

Under the order, an employer or employing unit must not be charged for unemployment benefits if their employees become unemployed because of an executive order requiring them to close or limit operations.  
 
What is work share? 
Work Share is a program that permits employers to maintain operational productivity during declines in regular business activity rather than laying off workers. Learn more here.  

What if we have an employee on temporary layoff who doesn’t want to come back when recalled?
The claim would be adjudicated.  The employer can protest the claim through MIWAM.

As an owner of a company that closes down because of COVID-19, am I entitled to unemployment?
For the owners to be eligible for Michigan unemployment compensation the company must have been reporting and taxing their wages on the quarterly report submitted to the state. If they have been treated as employees of the Corporation for tax purposes they may be eligible. However if the company is formed as a Partnership for example and the owners had elected to be treated as such and did not report and have taxes withdrawn as they may have had the option of doing, then they would not be eligible to file for benefits.

Michigan Law

Does Michigan Paid Medical Leave cover pandemic situations like school closings? 
Yes.  In a pandemic, eligible employees who work for covered employers may take paid leave for their own or their family members’ sickness caused by pandemic influenza. Unlike the FMLA, there is no requirement that the leave be taken for a "serious health condition" under the PMLA. Eligible employees can also take paid leave for reasons not FMLA-qualified, such as to care for healthy children whose schools are closed because of the pandemic. However, leave provided under the PMLA is limited.  In contrast to the 12-week (or 26-week for military family leave) leave allowed under the FMLA, the amount of paid family leave provided and used under the PMLA can be capped at 40 hours per year.  When requesting paid medical leave, eligible employees may be required to comply with the covered employer’s usual and customary notice, procedural, and documentation, but the employer must provide the employees with at least three days to provide requested documentation (unlike the 15 days allowed under the FMLA). The employer may discipline or discharge an employee who fails to comply with the employer's usual and customary notice, procedural, and documentation requirements. 


A public emergency is declared, and work is canceled as a result. Do workers have to be paid?
It depends.  One consideration for employers if exempt or non-exempt employees can't physically make it to their usual workplace is whether they can telecommute, and therefore must be paid the same as if they were physically in the office. But the issue becomes more complicated if workers are stuck at home with no work being performed.

If employees are non-exempt, they generally are only paid for time worked.  Therefore, if they are not working, they do not have to be paid.  Employers could require, similar to a shutdown, that employees use PTO during this time.  Yet, employers need to understand that the Michigan Paid Sick Leave may be applicable as well because the time off is due to a health scare. In addition, if they telecommute or work using their phones (emails or taking calls) this should be considered time worked.

For exempt employees, if the business remains open and the company provides a formal paid time off benefit, they do not have to be paid if they no longer have any paid vacation or PTO time available or earned. However, if the business is officially closed for less than a week and the employee worked, the partial week must be paid to an exempt employee regardless of whether paid time off is earned/accrued or not.  Michigan Paid Sick Leave may also come into play since this is a health emergency.  However, If they work one day in a week and there is no telecommuting options possible, they will have to be paid for the full week (Opinion Letter FLSA2005-41).  In addition, if they telecommute or work using their phones (emails or taking calls) it will be considered time worked.

For exempt employees, they do not have to be paid if the business is closed for five business days or longer.  Michigan Paid Sick Leave may also come into play since this is a health emergency.  However, in the situation if the business is closed and they do any work, telecommuting or any remote work, it is considered time worked.

What is considered an Essential Worker under the Governor’s Stay-at-Home Executive Order?
For purposes of this order, “critical infrastructure workers” are those workers described in the U.S. Cybersecurity and Infrastructure Security Agency guidance issued 3/19/20, including certain workers in each of the following sectors:

  • Health care and public health
  • Law enforcement, public safety, and first responders
  • Food and agriculture
  • Energy
  • Water and wastewater
  • Transportation and logistics
  • Public works
  • Communications and information technology, including news media
  • Other community-based government operations and essential functions
  • Critical manufacturing
  • Hazardous materials
  • Financial services
  • Chemical supply chains and safety
  • Defense industrial base

 

Additionally, “critical infrastructure workers” will include:

  • Childcare workers (including workers at disaster relief childcare centers), but only to the extent necessary to serve the children or dependents of critical infrastructure workers as defined in this order. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of critical infrastructure workers.
  • Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.

Employment

An employee reports to work with a bad cough and/or fever. What questions can HR or a manager ask of this employee?
Managers can accidentally violate the Americans with Disabilities Act if the query delves into the worker's medical history.   The EEOC has posted a notice detailing what employers should know. The federal agency advised that ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC about steps employers should be taking.  The EEOC references its guidance for pandemic flu situations for how to handle the current situation with Coronavirus. ADA-covered employers may ask the employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. However, all information gathered about an employee illness must be maintained as a confidential medical record in compliance with the ADA.  "There is that line there with the ADA as to the types of questions you can ask," Nathan Schacht of Baker Hostetler said. "You can certainly ask someone how they're feeling and see what their response is to that. But employers need to be very careful to not cross the line and ask those questions that could get into the disability zone."

If one of our employees is quarantined, what information can we share with our employees? Who can we share it with?
If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace. Employers should not, however, disclose to coworkers the identity of the quarantined employee due to ADA and HIPAA confidentiality requirements as well as local laws.

There are a number of variations of the issues raised above.  HR needs to consult with their legal counsel to ensure they are not violating any of the various laws.  With the expectation that the Coronavirus spread hasn’t peaked yet in the U.S., HR needs to be vigilant in advising managers not to do anything that would lead to liability during this time period.

Can HR send an employee home who comes to work sick?
Yes.  The CDC states that employees who become ill with symptoms of illness at work during a pandemic should leave the workplace. According to the EEOC, advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus, etc. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat to both the employee or other employees.

Can HR require a fitness for work before allowing the formerly sick employee to return to work?
The EEOC discusses whether under the ADA, when employees return to work, employers may require doctors’ notes certifying their fitness for duty. Yes, according to the EEOC. The ADA permits these inquiries "either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees," the EEOC said.

We have told employees in affected areas to work from home until further notice. Can we monitor their email and phone activity to ensure that they are actually working?
If you have specific policies that allow you to monitor emails and communications for any work-related reason, then you can monitor email and call activity consistent with those policies. In the absence of such policies, employers generally can monitor work email provided that there is a valid business purpose for doing so and employees do not have a reasonable expectation of privacy in using the employer’s system.

Can we fire an employee who has complained on social media that we do not do enough to protect our employees from COVID-19?
An employee complaint may be protected under the National Labor Relations Act (NLRA), which protects concerted activity by employees regarding their working conditions. Such complaints also may raise issues under the anti-retaliation provisions of various employment laws. Employers must carefully consider these rules and the particular circumstances of each case before taking action against an employee.

Can we fire an employee who refuses to come to work because of concerns about contracting COVID-19?
Terminating an employee who refuses, in good faith, to expose themselves to a dangerous job condition and who has no reasonable alternative but to avoid the workplace will be considered retaliation under OSHA laws. However, the condition causing the employee’s fear must be objectively reasonable—not simply the potential of unsafe working conditions. The employee may also be protected from discharge under Section 7 of the National Labor Relations Act if their refusal is part of a concerted protest against unsafe working conditions.

If an employer is hiring, may it screen applicants for symptoms of COVID-19? 
Yes. Per the EEOC an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.  

May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam? 
Yes.  Per the EEOC, any medical exams are permitted after an employer has made a conditional offer of employment.  However, employers should be aware that some people with COVID-19 do not have a fever.

May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?  

Yes.  Per the EEOC, according to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it? 
Per the EEOC, based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

How do I help my employees deal with the school closures?  
Gov. Whitmer announced the closure of all Michigan K-12 schools from Monday, March 16 to Sunday, April 5. Employers should coordinate leave policies and remember above how to pay employees if they work while at home.

Can we require employees to cancel scheduled vacations and to come into work?
Generally, yes. There are no laws preventing employers from cancelling or rescheduling vacations previously granted to employees. Most employer vacation policies expressly grant the employer to exercise such discretion if business needs dictate the cancellation or rescheduling of vacations. However, employers will want to check their vacation policies and, if applicable, collective bargaining agreements with labor unions to confirm that nothing contained therein impedes the employer’s ability to require employees to cancel or reschedule vacations. Employers should consult with counsel if they are subject to a policy or agreement.

Can we be held liable if one of our employees becomes infected with COVID-19 within the scope of their employment?
Such liability is possible, but unlikely. While the law varies state by state, an employee who becomes infected with COVID-19 while acting within the scope of his or her employment may be entitled to worker’s compensation, which would preclude other recovery from the employer.  Please contact your employment attorney for more information on this one.

OSHA

Does OSHA require non-healthcare employees to wear respirators? 
At this time, there is no general requirement for non-healthcare employees to wear respirators or other types of personal protective equipment (PPE). The CDC has issued guidance regarding the use of PPE only for healthcare personnel caring for patients with confirmed or possible COVID-19. The CDC stresses: “This guidance is not intended for non-healthcare settings (e.g., schools) OR to persons outside of healthcare settings.” At this time, the CDC is not recommending use of facemasks or any other protective equipment by the general public.

Is COVID-19 is a Recordable Illness for MIOSHA Purposes?
COVID-19 is a Recordable Illness for MIOSHA Purposes.  Federal OSHA has released brief guidance confirming that employers are responsible for recording cases of COVID-19 for the purposes of the Recording and Reporting of Occupational Injuries and Illnesses standard if all of the following are met: 

•  The case is a confirmed case of COVID-19.
•  The case is work-related as defined by 29 CFR 1904.5.
•  The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

What if an employee requests to wear some type of mask as an accommodation?
The CDC does not recommend that people who are well wear some type of mask to protect themselves from respiratory disease, including COVID-19. The CDC does recommend that surgical masks should be used by people who show symptoms of COVID-19. If an employee shows symptoms or has been diagnosed with COVID-19, however, the CDC recommends that the employee be separated from other employees and be sent home immediately, thus negating the need for a mask as an accommodation.

Travel Related Issues

A worker has recently traveled overseas to a country that isn't a high-risk Coronavirus location. Can the employer ask them to stay home upon their return?
Simple answer is yes.  "At this point it sounds funny, but all bets are off in a way. People need to behave in a measured way and a nondiscriminatory way, employers do, but given what's been going on I think employers can tell employees you can work from home if that's possible," Ruth Zadikany of Mayer Brown explains.  "I think it's OK to do it, but it's not required or necessary because you're not in a place [that] the CDC has denied as a huge risk factor to be there."

Can an employer restrict travel to all locations under a CDC travel advisory?
An employer may restrict business travel. Employers should continue to consult the CDC’s website: “Coronavirus Disease 2019 Information for Travel” for up-to-date travel notices concerning risk. The CDC advises that employers restrict all nonessential travel to areas with a Warning Level 3, and to exercise caution regarding travel to Warning Level 2 areas.  

What if employees share that they plan to travel to a high-risk area/country?

In this situation, an employer may advise the employee about the risks of travel, including quarantine thereafter, and should avoid any action that could result in a claim of national origin discrimination. An employer may deny time off for an employee’s personal travel, as long as such a denial is based on the destination, the business cost of a resulting quarantine, or other legitimate business-driven interest, not the national origin of the employee
.

Business Policies

Should I create a business continuity plan? 
Yes.  It’s important to have a plan in place that will keep your business running during a crisis such as a pandemic.  The following samples can be used as guidelines:

Sample Business Continuity Plan

Sample Pandemic Policy

How do I implement remote work for my employees?

Where possible, we recommend implementing a remote work policy to allow employees the added flexibility and safety during these rapidly evolving conditions.  Coordinate with your leave policies.  ASE offers resources and courses for implementing a remote work program.  Click here to view a sample remote work policy.  Please contact Kevin Marrs to get more information about our remote work programs


Where can I find the USDOL Wage and Hour Guidance?

The Wage and Hour Division has posted several documents that provide information on common issues faced by employers and employees when responding to COVID-19; the coronavirus’ effects on wages and hours governed by the FLSA; and job-protected leave under the FMLA:

FLSA Issues

Can an employer make prospective reduction in pay for a salaried exempt employee due to the economic downturn? 
An employer is not prohibited from prospectively reducing the predetermined salary amount to be paid regularly to a Part 541 exempt employee during a business or economic slowdown, provided the change is bona fide and not used as a device to evade the salary basis requirements. Such a predetermined regular salary reduction, not related to the quantity or quality of work performed, will not result in loss of the exemption, as long as the employee still receives on a salary basis at least $684* per week. On the other hand, deductions from predetermined pay occasioned by day-to-day or week- to-week determinations of the operating requirements of the business constitute impermissible deductions from the predetermined salary and would result in loss of the exemption. The difference is that the first instance involves a prospective reduction in the predetermined pay to reflect the long term business needs, rather than a short-term, day-to-day or week-to-week deduction from the fixed salary for absences from scheduled work occasioned by the employer or its business operations.

https://www.dol.gov/agencies/whd/fact-sheets/70-flsa-furloughs 



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