COVID-19 Small Business Resource Center

General

A: The Centers for Disease Control and Prevention (CDC), the U.S. Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, and the World Health Organization have created dedicated webpages with information on COVID-19 for employers.

In addition, state and local health officials are developing guidelines and resources on the illness. Check your state and local Department of Health and Department of Labor websites for additional information.

A: Employers should continue to do everything they can to limit exposure, such as:

  • Facilitate working remotely where possible.
  • Conduct virtual meetings instead of in-person meetings.
  • Limit or prohibit visitors to the workplace.
  • Practice social distancing in the workplace (staying at least 6 feet away from others).
  • Encourage employees to avoid gathering in breakrooms and larger groups.

If your employees are required to report to work, employers can help employees practice healthy habits by providing tissues, no-touch trash cans, hand soap and sanitizer, and disposable towels. Routinely clean all frequently touched surfaces, such as workstations, countertops, and doorknobs.

Health officials recommend reminding employees of the importance of:

  • Washing hands often with soap and warm water for at least 20 seconds.
  • Avoiding touching your eyes, nose, and mouth.
  • Cleaning things that are frequently touched (like doorknobs and countertops) with household cleaning spray or wipes.
  • Covering coughs and sneezes with a tissue or the inside of the elbow.
  • Staying home when feeling sick.

A: Yes. Employers may ask employees to notify them if they've been in contact with someone who has COVID-19. Also, at this time, the CDC is recommending that people who are close to someone with COVID-19, and develop symptoms of the virus, call their healthcare provider for guidance and self-quarantine for 14 days. Employees should be advising their employer of that as well.

A: Several states and local jurisdictions have ordered businesses to close except for essential businesses and/or personnel. Employers should comply with such orders. In addition, numerous companies have ordered employees to work from home as long as they are able. Even in the absence of an order to close, employees who refuse to report to work may have protections from adverse action. For example, under the Occupational Safety and Health Act, employees may have the right to refuse to work if all of the following conditions are met:

  • Where possible, they have asked the employer to eliminate the danger, and the employer failed to do so;
  • They genuinely believe that an imminent danger exists;
  • A reasonable person would agree that there is a real danger of death or serious injury; and
  • There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

Section 7 of the National Labor Relations Act (NLRA), which grants employees the right to act together to improve wages and working conditions, may also come into play in this situation.

Note: If an employee has an underlying condition that would qualify as a disability, they may be entitled to a reasonable accommodation under the Americans with Disabilities Act and/or similar state laws. Paid or unpaid leave may be considered a reasonable accommodation.

A: The CDC advises against employers requiring fitness-for-duty certifications for employees to return to work. Most people with COVID-19 have mild illness and can recover at home without medical care and can follow CDC recommendations to determine when to discontinue home isolation and return to work. Under the CDC's guidelines, employees with COVID-19 who have stayed home can stop home isolation and return to work when they have met one of the sets of criteria found here.

Nevertheless, federal law currently does allow employers to require fitness-for-duty certifications for employees to return to work, provided they are announced in advance and applied consistently. As a practical matter, though, doctors and other healthcare professionals may be too busy to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual can return to work.

However, some states and local jurisdictions have issued restrictions on seeking fitness-for-duty certification from healthcare providers or issued similar guidance to the CDC's.

A: If an employee is confirmed to have COVID-19, employers should inform other employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality (that is, don't reveal who has the illness). As a precautionary measure, employers should consider asking all employees who worked closely with that employee to self-quarantine for a 14-day period of time to better ensure that the infection does not spread. In addition, have a cleaning company complete a deep cleaning of your workspace. Employers should also immediately contact local health officials for further guidance.

Note: Employers should treat all information about an employee's illness as a confidential medical record and keep it separate from the employee's personnel file.

A: Typically, employers wouldn't be required to allow employees to work from home, but some state and local COVID-19 orders may require it. For example, in July, Michigan's governor issued an executive order that requires that any work that is capable of being performed remotely be performed remotely. Even if allowing telework isn't required, it's something employers should consider implementing to help prevent the spread of the illness.

Note: Telecommuting may be considered a reasonable accommodation if a worker's condition qualifies as a disability under the Americans with Disabilities Act and/or similar state laws.

A: Some state and local sick leave laws have limitations on when employers can ask for documentation. For example, several laws require that an employee be absent for more than three consecutive days before an employer can ask for documentation. However, in its interim guidance, the CDC has advised that employers should not require a healthcare provider's note for employees who are sick with acute respiratory illness to validate their illness or to return to work. Healthcare provider offices and medical facilities may be extremely busy and unable to provide documentation in a timely fashion.

A: Federal, state and local laws prohibit employers from discriminating against individuals because of disability (and certain other characteristics). Under these laws, employers must take steps to prevent discrimination and harassment against individuals who are disabled or perceived as disabled, including those who are exhibiting symptoms that suggest that they have contracted COVID-19. An employee who contracts COVID-19 may be entitled to reasonable accommodation and protection under the ADA if the employee's reaction to COVID-19 is severe or if it complicates or exacerbates one or more of an employee's other health condition(s)/disabilities. Employers should remind employees of their anti-harassment and discrimination policies and be sure to take all complaints seriously.

Note: Information about an employee's medical history and leave details must be kept confidential.

A: Federal, state and local laws prohibit employers from harassing and discriminating against individuals because of race, national origin, and certain other protected characteristics. Instances of harassment and discrimination tend to increase around situations like COVID-19. Therefore, employers should remind employees of their anti-harassment and discrimination policies. Take all complaints seriously and launch a prompt, thorough, and impartial investigation into any complaint.

Travel

A: Yes, as long as employers act consistently based on travel activities and do not say or do anything to violate the ADA or other federal, state or local nondiscrimination laws.

A: Given the numerous travel bans in place due to COVID-19, employers should first advise employees to check the CDC's Traveler's Health Notices for the latest guidance and on where travel is restricted.

If an employee has traveled or intends to travel, absent a claim that the employee has a recognized privacy interest in their travel, you may ask about their travel plans and take steps to reduce workplace exposure. If you learn that an employee has traveled, remain alert for fever, cough, or difficulty breathing and remind employees to avoid the workplace if they do develop any of these symptoms.

Keep in mind as well that, generally, some states prohibit employers from taking adverse action against an employee for engaging in lawful off-duty conduct, such as travelling to another country or state where travel is allowed. The time off may also be protected under federal, state, and local laws entitling employees to job-protected leave. For instance, an employee taking time off to take care of a family member with a serious health condition may be protected under the federal Family and Medical Leave Act, similar state laws, and/or state and local paid sick leave laws.

A: Yes, absent a claim that an employee has a recognized privacy interest in their travel activities. Employers should take steps to reduce any reasonable expectation of privacy that employees might have in those activities.

A: Yes, employers may exclude workers from the workplace if they travel to areas considered high risk and self-quarantine is recommended or required, as long as they act consistently based on travel activities and avoid saying or doing anything to violate the ADA or other federal, state, or local nondiscrimination laws. Employers should allow these employees to telework for the 14 days when possible. Depending on the circumstances, employees who are unable to telework may be entitled to paid leave under federal, state, and/or local laws. In the absence of a requirement to provide paid leave, employers should allow employees to use other employer-provided leave during the absence.

A: Employers should review state and local orders, actions, and guidelines regarding employees who travel to high-risk locations. These typically can be found on the webpages of state or local governments and/or health agencies. Some of these jurisdictions even have hotlines employers can call with questions. Employers should determine their rights and obligations as well as consider the risks of allowing employees into the workplace without self-quarantining, consulting legal counsel if applicable.

Pay

A: Employers should check applicable policies, collective bargaining agreements, and federal, state, and local laws to determine if pay is required.

For example, the Families First Coronavirus Response Act (enacted on March 18, 2020) requires employers with fewer than 500 employees to provide paid sick leave to all employees who are unable to work (or telework) because of the following reasons:

  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or is caring for an individual who is subject to such an order.
  • The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 or is caring for an individual who has been advised to self-quarantine.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19 precautions.
  • 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.

Full-time employees are entitled to take up to 80 hours paid sick leave. Part-time employees are eligible for a number of hours equal to the average hours worked over a two-week period.

The law goes into effect on April 1, 2020 and will expire on December 31, 2020. State and local paid leave laws may also require pay, and some jurisdictions are enacting emergency rules to require paid leave in such situations.

A: The Families First Coronavirus Response Act (enacted on March 18, 2020) amends the Family and Medical Leave Act (FMLA) to temporarily require employers with fewer than 500 employees to provide up to 12 weeks of job-protected leave to care for their child under 18 years of age if their school or place of care has been closed, or their childcare provider is unavailable, due to a public health emergency. To be eligible for this leave, an employee must:

  • Work for an employer with fewer than 500 employees.
  • Have worked for the employer for at least 30 calendar days prior to the leave.

The first 10 days of the leave may be unpaid, but the employee may elect to substitute any accrued paid leave during this period. Employees are entitled to paid leave after the first 10 days at two-thirds the employee's regular rate of pay, for the number of hours the employee would otherwise be scheduled to work. Paid leave is subject to a limit of $200 per day, and up to a total amount of $10,000. The law goes into effect on April 1, 2020 and will expire on December 31, 2020.

Among the states and local jurisdictions that require employers to provide paid sick leave, many cover absences related to school closures that are ordered by health officials. Check your state and local laws for details. Some jurisdictions are enacting emergency rules that would require such leave, so monitor the situation closely.

A: Some states expressly require employers to reimburse employees for any reasonable business expenses they incur, such as Internet access from a home office. Absent such a requirement, expense reimbursement may be necessary to satisfy the FLSA minimum wage and overtime requirements for non-exempt employees. In most cases, under the FLSA, any work-related expense incurred by an employee that would bring their pay below the minimum wage (or cut into overtime pay) must be reimbursed.

Regardless of your requirements, it's a best practice to reimburse all employees for any reasonable business expenses. Where the expense may be used for work and personal use (such as having an Internet connection), consider a system to help employees monitor and record how much of the cost is related to conducting business activities, and reimburse employees at least that amount.

Make sure you also have policies and controls in place to ensure that employees use a secure connection to the Internet, protect company and client data, and comply with privacy laws when working remotely.

A: Implement an effective process for recording work hours of all employees, such as an electronic timekeeping system that workers can access via a computer or mobile device. Also, develop policies that require employees to record all hours worked and expressly prohibit off-the-clock work. To help prevent unauthorized overtime, consider a policy that requires employees to obtain permission before working overtime. While employers may discipline employees for violating such a policy, they may never withhold overtime pay.

A: You can encourage employees to sign up for direct deposit by noting its convenience and benefits and that workplace distribution isn't available due to social distancing guidelines and/or federal, state, or local orders. For employees who don't sign up for direct deposit, many employers are mailing their paycheck to them. Before doing so, verify you have the employee's correct address.

A: In a majority of states, direct deposit is generally permitted only if the employee voluntarily authorizes it. Typically, the employee's consent must be in writing. In the absence of a restriction, employers should evaluate the pros and cons of requiring direct deposit. Additionally, consider whether a mandatory direct deposit policy would disproportionately exclude members of a protected class, and if so, offer other options for the receipt of wages.

A: Most states require employers to provide a wage statement to employees each pay period, regardless of whether wages are paid by paper check or electronically. States that permit electronic wage statements may have certain rules that employers must follow, such as obtaining the employee's consent. Check your state law for details.

Note: Run Powered by ADP® clients with Paperless Payroll can give employees who sign up for direct deposit access to their pay statements electronically using Employee Access or the ADP Mobile Solutions application.

A: Direct deposit is included in all RUN Powered by ADP® payroll bundles. Pricing is the same regardless of whether the employee elects a paper check or direct deposit.

Business Closures

A: Several laws may govern what type and how much notice employers need to give their employees if they are forced to close temporarily. For example, the Worker Adjustment and Retraining Notification (WARN) Act helps ensure advance notice in cases of qualified plant closings and mass layoffs. In addition, several states have mini-WARN laws, some of which require more notice and/or cover a wider array of closures and/or apply to smaller businesses. Due to COVID-19, states may suspend or alter these requirements. For example, on March 17, 2020, California’s Governor signed an Executive Order relieving California employers of the 60 day notice requirement while California is in a state of emergency. However, employers still must provide notice as soon as practical and have to meet additional requirements as well. Because the situation with COVID-19 is so fluid, employers are encouraged to check with counsel to make sure they are following the most current guidance on notice requirements.

Additionally, some states require advance notice of any reduction in pay. Absent a specific notice requirement, employers should provide as much notice as possible.

Note: Some states and local jurisdictions have enacted predictive scheduling laws. These laws generally require employers to follow certain scheduling practices, including providing a certain amount of advance notice before making changes to employees' schedules. Be sure to check to see if you are subject to such a law. Some jurisdictions, including Oregon, are providing guidance on these laws in light of COVID-19.

A: Non-exempt employees (those entitled to minimum wage and overtime) are paid only for "hours worked." Therefore, if non-exempt employees miss an entire day's work because you're closed and you didn't require them to report to work, you're generally under no obligation to pay them, unless you've promised otherwise.

However, if they do report to work, you must pay these employees for any time they actually worked and/or were required to stay at work while your company made a decision to close. Note that some state laws require employers to pay employees for a minimum number of hours when they report to work but are sent home before the end of their scheduled shift. Check your applicable law for rules related to paying employees when they are required to report to work but are sent home early.

Employees who are classified as exempt from minimum wage and overtime must generally receive their full salary in any workweek in which they perform work, regardless of the number of hours worked. However, if they perform no work in a workweek, the employer isn't required to pay them.

Example 1: An exempt employee's workweek is from Sunday to Monday. The state orders their employer to close from Tuesday March 17, 2020 through Sunday March 29, 2020. However, the employee works on Monday, March 16. Since the employee worked part of the workweek, they're entitled to their full salary for the week of March 15, 2020. However, if the employee performs no work in the workweek of March 22, 2020, no pay is required for the March 22nd week.

Example 2: The same facts as Example 1 except that during the workweek of March 22, 2020, the employee performs about an hour of work from home one day. This employee would be entitled to their full salary for both the workweek of March 15 and the workweek of March 22.

Note: In some situations, employees may be entitled to paid leave during a closure (see below).

A: Several state and local paid sick leave laws require employers to allow employees to use their leave when a business is closed by a public health official due to a health emergency. Since the pandemic began, some of these jurisdictions have provided guidance clarifying these rules as they apply to COVID-19. Check your state and local laws for details. Even if your jurisdiction doesn't currently require paid leave in the event of a temporary closure, some states and local jurisdictions are enacting emergency rules that require it, so monitor the situation closely. In the absence of a state or local requirement, many employers are allowing employees to use paid leave. Make sure your policy complies with applicable laws and is clearly communicated to employees.

Note: In a temporary rule issued on April 1, 2020, the Department of Labor indicated that that if no work is available for the employee, the employee isn't entitled to leave under the Families First Coronavirus Response Act (FFCRA). However, a federal district court judge in New York struck down this provision on August 3, 2020. It's unclear whether the ruling applies to just New York employers or employers nationally or how employers should handle leave that was previously denied based on the struck-down provision. The ruling itself doesn't address these issues, and the DOL hasn't responded to the ruling yet. Employers should monitor the situation closely and discuss the implications of the ruling with their legal counsel.

A: Unless certain conditions are met (including the President declaring a "major disaster"), donated leave for a temporary closure would be taxable to both the donor and the recipient. President Trump has declared the coronavirus a major disaster in certain states. In these jurisdictions, any leave-donation program must meet the requirements outlined in IRS Notice 2006-59 for the donor to avoid taxes on the donated leave. Additional states may be declared in the future, so check the Federal Emergency Management Agency (FEMA) website before applying voluntary donations.

Beyond the tax implications, if the paid leave in question is required under state and/or local law, employers should ensure that the law allows employees to donate their leave to fellow employees.

Note: Leave-donation programs for medical emergencies are subject to different IRS rules. See IRS Rev. Rul. 90-29, 1990-1 C.B. 11 for details.

A: Final pay rules differ from state to state, so check the law in the state where your employees work. Generally, though, short-term furloughs with a definite return date (that is clearly communicated to employees) wouldn't trigger final pay requirements. Thus, any pay owed to the employee would be due on their next regular payday. However, some states may have stricter rules. For example, in California, a furlough longer than a pay period should be considered a layoff, barring any guidance from the state indicating otherwise. If it is a layoff (i.e. no work for longer than a pay period) all wages due and any accrued but unused vacation and PTO must be paid out immediately.

A: The federal government, many states, and some local jurisdictions have loan and other programs that provide assistance to impacted businesses. See the Small Business Loans and CARES Act sections of our Resource Center for more information.

A: Many states have adopted shared-work programs to provide employers with an alternative to layoffs. Under these programs, the employer temporarily reduces the hours of a group of employees, and the affected employees collect partial unemployment benefits. Another option is offering unpaid time off to employees in the form of a furlough.

Additionally, the federal government, many states, and some local jurisdictions have loan and other programs that provide assistance to impacted businesses. See the Small Business Loans and CARES Act sections of our Resource Center for more information.

A: No. Compliance posters will not be delivered to businesses located in a state with a lockdown. Once the lockdown has been lifted, all posters will be shipped as normal.

In the meantime, you can download digital versions of your posters from our online Labor Law Poster Portal: www.runlaborlawposter.com.

A: The federal WARN Act generally requires employers to provide advance notice of mass layoffs. The DOL advises that employers in this situation review the "unforeseeable business circumstances" exception to the 60-day notice requirement (see § 3(b)(2)(A), and the WARN regulations at 20 CFR 639.9). The "unforeseeable business circumstances" exception applies to plant closings and mass layoffs caused by business circumstances that were not reasonably foreseeable at the time that 60-day notice would have been required. Employers should also check applicable state WARN laws.

Unemployment Benefits

Though individual state law dictates an employee's eligibility for unemployment insurance benefits, the federal government, through guidance (Unemployment Insurance Program Letter 10-20) and legislation (Emergency Unemployment Insurance Stabilization and Access Act 0f 2020), is making an effort to provide states with greater flexibility to make as many individuals affected by COVID-19 as eligible as possible.

A: Depending on the state, the length of the closure, and the employee's work history, employees who are prevented from coming to work because their employer temporarily ceases operations due to COVID-19 may be eligible for unemployment benefits. States have issued guidance addressing this issue and many are suspending waiting periods for such benefits. Check your state law, communicate with employees regarding their eligibility for unemployment benefits, and provide any required notice and information accordingly.

A: In general, the more employees use unemployment benefits, the higher the employer's rate will be. However, several states have suspended rules that would require an employer's account to be charged if employees are filing unemployment claims for certain reasons related to COVID-19. In such cases, an employer's unemployment insurance rate wouldn't increase. Check your state unemployment agency for details.

A: Some states are allowing employees to collect unemployment benefits in such situations. Check your state unemployment agency for details.

A: Generally, an employee who is receiving paid sick leave or paid family leave would be receiving pay and therefore ineligible for unemployment benefits while being paid.

A: Generally, if there's a reduction in available work hours for employees, the employees may be eligible for partial unemployment benefits.

A: The Small Business Administration has issued guidance to make clear that, as long as the company made a good faith, written offer of rehire at the same salary/wages and for the same number of hours, the employee's rejection of that offer will not result in a reduction of the company's loan forgiveness amount. The company must document the employee's rejection of the offer of rehire. Please also note that employees who reject offers of re-employment may forfeit eligibility for continued unemployment compensation.

A: Some states require employers to provide a separation notice, though specific requirements vary by state. For example, California requires employers that are laying off employees to furnish a specific notice (Pamphlet DE 2320) along with the employer's name, employee's name and social security number, the type of employment action (layoff, discharge, leave, etc.), and the date of such action.

Check your state law for its requirements.

A: At least one state—Georgia—is requiring employers to file unemployment benefits on employees' behalf as a result of COVID-19. Some other states are encouraging employers to do so. Employers should check with their unemployment agency to determine whether they can/should/must file unemployment benefits on their employees' behalf.

A: Under the recently enacted Coronavirus Aid, Relief, and Economic Security (CARES) Act, business owners, self-employed individuals, part-time workers, and those with limited work histories may be eligible for temporary unemployment benefits assistance during their period of unemployment ending on or before December 31, 2020, if certain conditions are met.

To receive unemployment benefits under this program, individuals must certify that they are otherwise able and available to work (as defined by their applicable state law), but they are unemployed, partially unemployed, or unable to work because:

  • The individual has been diagnosed with COVID–19 or is experiencing symptoms of COVID–19 and seeking a medical diagnosis;
  • A member of the individual's household has been diagnosed with COVID–19;
  • The individual is providing care for a family member or a member of the individual's household who has been diagnosed with COVID–19;
  • A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of COVID–19 and school or facility care is required for the individual to work;
  • The individual is unable to reach the place of employment because of a quarantine, or a health care provider advising the individual to self-quarantine;
  • The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of the COVID–19 public health emergency;
  • The individual has become the main source of financial support for a household because the head of the household has died as a direct result of COVID–19;
  • The individual has to quit his or her job as a direct result of COVID–19;
  • The individual's place of employment is closed as a direct result of the COVID–19 public health emergency;
  • The individual meets any additional criteria established by the Department of Labor for unemployment assistance; or
  • The individual is self-employed, is seeking part-time employment, does not have sufficient work history, or otherwise would not qualify for regular unemployment or extended benefits under state or federal law.

The individual must also certify that they don't have the ability to telework with pay and they aren't receiving paid sick leave or other paid leave benefits. Benefits are limited to 39 weeks. Check with your state unemployment agency for details.

A: Here's a summary of some of these additional unemployment changes made by the CARES Act:

Emergency Increase in Unemployment Compensation Benefits (Section 2104):

This section provides for a federal-state partnership to make payments of regular compensation to individuals in amounts determined under state law plus $600. States will be fully reimbursed by the federal government for the extra payments.

Temporary Full Federal Funding of the First Week of Compensable Regular Unemployment for States With No Waiting Week (Section 2105):

States that do not impose a waiting week for unemployment benefits will be fully reimbursed by the federal government.

Pandemic Emergency Unemployment Compensation (Section 2107):

States may enter into a partnership with the federal government for an additional 13 weeks of federally funded unemployment compensation to individuals who have exhausted all rights to unemployment benefits under state and federal law for that benefit year (excluding benefits that ended before July 1, 2019) and are not otherwise receiving unemployment compensation under any state, federal, or Canadian law. Individuals must be able to, and be actively seeking, work.

Insurance

A: The reference to insurance premiums used in loan calculations refers to health benefits premiums only. This means those amounts used to pay for health, dental, vision and medical flexible spending accounts. Workers' Compensation premium is not included.

A: Generally speaking, pandemics and viruses are not covered in a workers' compensation policy. Some carriers and plans do have a rider that allows for a pandemic to qualify as a specific call out for business interruption insurance. However, this would need to be looked at on a case-by-case basis. Where it may be covered under a general plan is if there is an actual loss of property, such as if a business had vacated a building due to COVID-19 and a fire were to destroy the property.

A: Maybe. Most states have mandated that a policyholder can request a payroll audit from the carrier at any time, which could potentially reduce premium payments due to fluctuations in payroll. Carriers must comply with this request and they don't have to wait for the end-of-term audit to make premium adjustments. This may allow for increased cash flow for the business owner. Additionally, most workers' compensation carriers are working with clients on payment options, so it's important to check with your specific carrier or broker to see how this could impact you.

A: The CARES Act requires health insurance companies to cover certain COVID-19 related expenses and treatments. While we're still studying the full extent of what is required, many insurance companies have made special provisions for COVID -19. For example, some carriers are:

  • Adding off-cycle open enrollments to allow previously uncovered employees to obtain health coverage.
  • Retaining eligibility for employees that have been furloughed or had reduction in hours.
  • Waiving co-pay or costs associated with COVID-19 testing and treatments as well as waiving certain administrative requirements for providers/members to help make treatment easier.
  • Waiving fees for prescription delivery and are allowing for adjustments to prescription refills. For example, 30-day prescriptions can be refilled for 90 days.
  • Deploying physicians and nurses to areas that need assistance.

It is important to note that there are changes and updates to COVID-19 relief and carrier activities every day. Business owners should carefully monitor the situation and developments. Also, it's important to consult your insurance company, financial advisors and accountants to understand which relief options are best for you and your business circumstance.

Garnishments

A: Yes, Section 3513 of the CARES Act has provided temporary suspension of federal student loan garnishments. Other garnishment agencies are also offering relief, such as suspensions and refunds. ADP has created a comprehensive list of changes to wage garnishment agencies, courts, attorneys and creditors. You can see the list here.

Update: On August 8, 2020, the President signed a Memorandum on Continued Student Loan Payment Relief During the COVID-19 Pandemic, which provides for an extension of the relief provided under the CARES Act for debtors of student loans held by the Department of Education.

Specifically, under the Memorandum, payments and accrual of interest for student loans held by the Department of Education are temporarily suspended until December 31, 2020.

A: Log into RUN, and stop the garnishment on the employee profile. Make sure you retain the garnishment information, as you will need to reenter the garnishment when the suspension period ends. If you need further assistance, contact your ADP representative.

A: As agencies continue to issue guidance, ADP will update the list found here. You may also receive updates from agencies directly, typically through the mail. Alternatively, you may contact the agency for further instruction.

Contact your ADP representative for further assistance.

Families First Coronavirus Response Act

On March 18, 2020, the United States enacted the Families First Coronavirus Response Act, which will require employers to provide paid leave to certain employees impacted by COVID-19 and offer tax credits to employers that do so. The law requires two types of paid leave: Emergency Paid Sick Leave and Public Health Emergency Leave/Expanded FMLA.

Quick links:

General

A: The leave requirements take effect April 1, 2020 and expire on December 31, 2020, according to the Department of Labor.

A: The DOL has announced that it will observe a temporary period of non-enforcement through April 17, 2020, as long as the employer has acted reasonably and in good faith to comply with the law. For purposes of this non-enforcement period, "good faith" means:

  • Any violations are remedied, and the employee is made whole as soon as practical by the employer;
  • The violations were not willful; and
  • The DOL receives a written commitment from the employer to comply with the law in the future.

A: In a temporary rule issued on April 1, 2020, the Department of Labor indicated that that if no work is available for the employee, the employee isn't entitled to leave under the FFCRA. For instance, if the employer temporarily ceases operations because of a lack of work or the state has ordered the business to close because of COVID-19, employees wouldn't be entitled to leave under the FFCRA. However, a New York federal district court judge struck down this work-availability requirement on August 3, 2020. It's unclear whether the ruling applies to just New York employers or employers nationally or how employers should handle leave that was previously denied based on the struck-down provision. The ruling itself doesn't address these issues, and the DOL hasn't responded to the ruling yet. Employers should monitor the situation closely and discuss the implications of the ruling with their legal counsel.

Note: Under some state/local laws, employees may be entitled to paid leave in situations where the workplace is closed as a result of COVID-19.

A: Generally, employers with fewer than 500 employees must provide leave under the FFCRA. Under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the application of the paid sick leave requirement and/or the PHEL requirement.

The DOL also has the authority to issue regulations exempting employers with fewer than 50 employees from the PHEL requirement and certain aspects of the sick leave requirement, if that requirement would jeopardize the viability of the business.

A: The DOL has the authority to issue regulations exempting employers with fewer than 50 employees from the requirements to provide paid leave to an employee who is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, for COVID-19 related reasons if it would jeopardize the viability of the business.

In a temporary rule issued on April 1, 2020, the DOL clarified that to claim the exemption, an authorized officer of the business must determine that:

  • The leave requested would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • The absence of the employee requesting such leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
  • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee requesting leave, and this labor or services are needed for the small business to operate at a minimal capacity.

To elect this exemption, the employer must document that a determination has been made pursuant to the above criteria. The employer should retain these records in its files for at least four years. The employer is still required to post the required FFCRA notice.

A: In regulations, as amended, the Department of Labor defines these terms as follows for the purposes of the exemption:

  • The amended regulations revise the definition of "healthcare provider" to mean employees who are healthcare providers under the Family and Medical Leave Act and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. This group includes employees who provide direct diagnostic, preventive, treatment, or other patient care services, such as nurses, nurse assistants, and medical technicians, according to the DOL. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services. Finally, employees who don't provide direct healthcare services to a patient but are otherwise integrated into and necessary to the provision of those services—for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition—are healthcare providers, according to the DOL.

    An individual isn't a healthcare provider merely because their employer provides healthcare services or because the individual provides a service that affects the provision of healthcare services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers aren't healthcare providers, even if they work at a hospital of a similar healthcare facility.

    To minimize the spread of the virus associated with COVID-19, the DOL encourages employers to be judicious when using this definition to exempt healthcare providers from the provisions of the FFCRA. For example, an employer may decide to exempt these employees from leave for caring for a family member but choose to provide them paid sick leave in the case of their own COVID-19 illness.

  • An emergency responder is anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to 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, child welfare workers and service providers, public works personnel, and individuals 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.

A: If their child's care provider during the summer—a camp or other programs in which the employee's child is enrolled—is closed or unavailable for a COVID-19 related reason, the employee would be entitled to leave under the FFCRA if they are unable work or telework.

A: If the physical location where the child received instruction or care is now closed, the school or place of care is "closed" for purposes of FFCRA leave. This is true even if some or all instruction is being provided online or whether, through another format such as "distance learning," the child is still expected or required to complete assignments.

Emergency Paid Sick Leave

A: Full-time employees must be provided with 80 hours of paid sick leave. Part-time employees are entitled to paid sick leave in the amount of the average number of hours they work over a two-week period.

A: Employees are entitled to use emergency paid sick leave when they are unable to work (or telework) because of the following reasons:

  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or is caring for an individual who is subject to such an order.
  • The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 or is caring for an individual who has been advised to self-quarantine.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19 precautions.
  • 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.

A: No. Employers are prohibited from requiring an employee to use other paid leave provided by the company prior to using paid sick leave required by this law.

A: No. The law imposes a new leave requirement on employers that is effective beginning on April 1, 2020.

A: No. Emergency paid sick leave is in addition to other leave provided under federal, state, or local law; an applicable collective bargaining agreement; or the employer's existing company policy.

A: No. Employers are prohibited from requiring workers to find a replacement to cover their hours during their time off.

A: The employer must generally pay employees their regular rate of pay (as defined by the Fair Labor Standards Act) or the applicable minimum wage, whichever is higher, up to a maximum of $511 per day (and a total of $5,110). However, leave to care for an individual on quarantine/isolation/self-quarantine or to care for a child whose school or daycare is closed or childcare provider is unavailable may be compensated at 2/3 of the employee's regular rate of pay (or the applicable minimum wage if higher), up to a maximum of $200 per day (and a total of $2,000).

A: Employers are required to use a weighted average of the employee's regular rate of pay for the purposes of emergency paid sick leave, following this two-step method:

  1. Use the rules contained in the Fair Labor Standards Act (see a summary here) to compute the regular rate for each full workweek in which the employee has been employed over the lesser of:
    • The six-month period ending on the date on which the employee takes leave; or
    • The entire period of employment;
  2. Compute the average of the weekly regular rates, weighted by the number of hours worked for each workweek.

A: Yes, the DOL says that employers must 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, as mentioned above, total emergency paid sick leave is still limited to 80 hours. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of emergency paid sick leave in the first week and 30 hours of paid sick leave in the second week.

Note: Employers aren't required to pay the overtime premium for the emergency paid sick leave provided in excess of 40 hours, according to DOL guidance.

A: The answer differs depending on whether the employee is teleworking or working at their normal workplace, according to DOL guidance.

Teleworking Employees:

Employees who are unable to telework their normal schedule of hours may use emergency paid sick leave intermittently, but only if the employer agrees to it. The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.

Employees Working at Their Normal Workplace:

Employees who are working at their normal workplace and who need emergency paid sick leave to care for their child because of COVID-19 related reasons may also take such leave intermittently, but only if the employer agrees to it, according to the guidance.

Emergency paid sick leave taken for any other covered reason (such as, isolation or quarantine) must:

  • Be taken in full-day increments.
  • Continue each day until the employee either (1) uses the full amount of paid sick leave or (2) no longer has qualifying reason for taking paid sick leave.

This is because the intent of the FFCRA is to provide paid sick leave to keep the individual from spreading the virus to others.

Note: If the employee no longer has a qualifying reason for taking paid sick leave before they exhaust their emergency paid sick leave, they may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

A: In amended regulations, the Department of Labor said that employees must provide documentation as soon as practicable that contains the following information:

  • Employee's name;
  • Date(s) for which leave is requested
  • Qualifying reason for the leave; and
  • Oral or written statement that the employee is unable to work because of a qualified reason.

Additional documentation is required depending on the reason for the need for leave:

  • A quarantine or isolation order. The employee must also provide the name of the government entity that issued the order.
  • A healthcare provider advised self-isolation. The employee must also provide the name of the healthcare provider.
  • Seeking a medical diagnosis. Employers may require the employee to identify their symptoms and a date for a test or doctor's appointment. They may not, however, require the employee to provide further documentation in order for the employee to use paid sick leave for COVID-19 related symptoms.
  • To care for a son or daughter. An employee must also provide:
    • The name of the son or daughter;
    • The name of the school, place of care, or child care provider that has closed or become unavailable; and
    • A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave under the FFCRA.

The employer may also request an employee to provide additional material needed for the employer to support a request for tax credits pursuant to the FFCRA.

A: An employer is required to retain all documentation provided by employees requesting leave for four years, regardless whether leave was granted or denied. If an employee provided oral statements to support their request for the leave, the employer is required to document and maintain this information.

In order to claim tax credits from the Internal Revenue Service (IRS), the temporary rule also advises an employer to maintain the following records for four years:

  • How the employer determined the amount of paid leave eligible for the credit, including records of work, telework, and leave;
  • How the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
  • Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
  • Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941l; and
  • Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.

A: For employees with variable work schedules, the determination of hours to be paid is based on the average hours the employee was scheduled per day over the six-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type. If the employee does not have six-months of work history with the employer, hours are based on the employee's reasonable expectation at the time of hire of the average hours the employee would normally be scheduled to work.

A: A part-time employee is entitled to leave for their 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. 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 their employment.

A: Yes, the DOL says that employers must 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, as mentioned above, total emergency paid sick leave is still limited to 80 hours. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of emergency paid sick leave in the first week and 30 hours of paid sick leave in the second week.

Note: Employers aren't required to pay the overtime premium for the emergency paid sick leave provided in excess of 40 hours, according to DOL guidance.

A: In a temporary rule issued on April 1, 2020, the Department of Labor defined covered "individuals" as an employee's immediate family member, a person who regularly resides in the employee's home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if they were quarantined or self-quarantined. An employee may take emergency paid sick leave under this provision if the employee is unable to perform work for their employer and if the individual depends on the employee to care for them and is either:

  • Subject to a quarantine or isolation order (as defined); or
  • Has been advised to self-quarantine by a health care provider because of a belief that the individual has, or may have, COVID-19, or is particularly vulnerable to COVID-19.

A: Under the FFCRA, any one individual employee is limited to a maximum of two weeks (80 hours) of emergency paid sick leave. Once an employee takes the maximum 80 hours, they aren't entitled to additional FFCRA paid sick leave from a subsequent employer. If an employee leaves their employer before taking 80 hours of paid sick leave, then their new employer (if covered by FFCRA) must provide paid sick, when applicable, until the employee has taken a total of 80 hours.

A: Each employee is entitled to 10 days of emergency paid sick leave. The law didn't include an exception for spouses. Barring subsequent federal guidance or rules indicating otherwise, employers may be required to provide each spouse with 10 days of emergency paid sick leave, including when it is to care for the same individual.

Note: In a temporary rule issued on April 1, 2020, the DOL made an important clarification that leave “to care for a son or daughter” whose school/daycare is closed is permitted only if no other suitable person is available to care for the son or daughter during the period of such leave.

A: To be eligible for FFCRA leave, the employee must seek a medical diagnosis (if experiencing symptoms) or a healthcare provider must otherwise advise them to self-quarantine.

Self-quarantine:

An employee would be eligible for FFCRA paid sick leave if a health care provider advises the employee to self-quarantine based on a belief that:

  • The employee has or may have COVID-19; or
  • The employee is particularly vulnerable to COVID-19; and
  • Following the advice of a healthcare provider to self-quarantine prevents the employee from being able to work, either at the employee's normal workplace or by telework.

Seeking a medical diagnosis:

If the employee is claiming they have COVID-19 symptoms, they must take steps to seek a medical diagnosis to be entitled to leave, such as making, waiting for, or attending an appointment for a COVID-19 test. They would also be entitled to leave while awaiting the results if they are unable to telework. In the case of an employee who exhibits COVID-19 symptoms and seeks medical advice but is told that they don't meet the criteria for testing and is advised to self-quarantine, they would be eligible for leave, provided they meet the self-quarantine requirements listed above.

Documentation:

For employees taking FFCRA paid sick leave, they must provide documentation containing the following information:

  • Employee's name;
  • Date(s) for which leave is requested;
  • Qualifying reason for the leave;
  • Oral or written statement that the employee is unable to work because of a qualified reason; and
  • The name of the healthcare provider who advised quarantine (if the employee is self-quarantining)

Employers may also require the employee to identify their symptoms and a date for a test or doctor's appointment, according to Department of Labor guidance. However, employers are prohibited from requiring the employee to provide further documentation or similar certification that they sought a diagnosis or treatment from a healthcare provider, according to the guidance. The DOL explains that the minimal documentation required to take this leave is intentional so that employees with COVID-19 symptoms may take leave and slow the spread of COVID-19. Please note, however, that if an employee were to take unpaid leave under the FMLA, the FMLA's documentation requirements are different and apply. Further, if the employee is concurrently taking another type of paid leave, any documentation requirements relevant to that leave still apply.

A: For purposes of emergency paid sick leave, a federal, state, or local quarantine or isolation order includes shelter-in-place or stay-at-home orders, issued by any federal, state, or local government authority. However, in order for such an order to qualify for leave, being subject to the order must be the reason the employee is unable to perform work (or telework) that the employer has for them. An employee may not take paid leave due to such an order if the employer does not have work for them to perform as a result of the order or for other reasons.

A: Employers must post a notice describing the paid leave requirements in a conspicuous place on their premises. Click here to download the notice. For telecommuting employees, an employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information website.

A: With regard to emergency paid sick leave under the FFCRA, it will generally depend on whether the state (or local) action is considered a quarantine or isolation "order." The emergency paid sick leave requirement generally applies to any quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any federal, state, or local government authority that cause the employee to be unable to work. This also includes when a federal, state, or local government authority has advised categories of citizens (such as those of certain age ranges or with certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of employees to be unable to work even though their employers have work for them. If employers have legal counsel, they should consult them and review state and local actions to determine whether they qualify as a quarantine or isolation "order." These typically can be found on the webpages of state or local governments and/or health agencies. Some of these jurisdictions even have hotlines employers can call with questions. In some states and local jurisdictions, there will also have to be a determination of whether state and/or local paid leave laws apply.

Examples:

In late June, the governors of Connecticut, New Jersey, and New York each issued a travel advisory. The travel advisories generally apply to anyone travelling for 24 hours or longer to designated "high risk" states. However, each state took different approaches in implementing their advisory.

Connecticut:

In general, anyone traveling into Connecticut from a designated high-risk state must complete a travel health form and self-quarantine for a 14-day period. Failure to self-quarantine or to complete the form may result in a civil penalty of $1,000 for each violation.

New Jersey:

In New Jersey, individuals traveling into the state from a designated high-risk state are "advised" to self-quarantine for 14 days. The state says the self-quarantine is voluntary, but compliance is expected.

New York:

Under Executive Order 205, individuals must quarantine for 14 days after traveling within designated high-risk states.

Note: In March 2020, the State of New York enacted legislation (Senate Bill 8091) that provides paid leave to employees who are subject to a quarantine or isolation order as a result of COVID-19. On June 26, 2020, Executive Order 202.45 clarified that employers aren't required to provide leave under Senate Bill 8091 to employees who travel to designated states on personal travel and if the employee was provided notice of the travel restriction and the limitations of the sick leave law prior to such travel.  The executive order was set to expire on July 26, 2020 but could be extended. In any case, this exception wouldn't apply to leave under the FFCRA.

Employers should consult legal counsel (if applicable) to determine whether and how travel restrictions may impact their leave obligations. Travel restrictions are changing often, so employers should also monitor the situation closely and keep their employees up-to-date on any travel restrictions, which may help employers implement the laws.

Public Health Emergency Leave (PHEL)/Expanded FMLA

A: To be eligible for PHEL, an employee must:

  • Work for an employer with fewer than 500 employees.
  • Have worked for the employer for at least 30 calendar days prior to the leave.

However, under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the PHEL requirement.

A: The Department of Labor says that an employee is considered to have been employed for at least 30 calendar days if the employer had the employee on its payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, if an employee wants to take leave on April 1, 2020, the employee would need to have been on the employer's payroll as of March 2, 2020.

A: Eligible employees may use PHEL to care for their child under 18 years of age if their school or place of care has been closed, or their childcare provider is unavailable, due to a public health emergency.

A: Employees may use PHEL intermittently, but only if the employer agrees to it.

A: Eligible employees are entitled to up to 12 weeks of PHEL.

A: As soon as practicable, an employee must provide documentation containing the following information:

  • Employee's name;
  • Date(s) for which leave is requested
  • Qualifying reason for the leave; and
  • Oral or written statement that the employee is unable to work because of a qualified reason.

An employee must also provide:

  • The name of the son or daughter;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave under the FFCRA.

The employer may also request an employee to provide additional material needed for the employer to support a request for tax credits pursuant to the FFCRA.

A: The first two weeks of PHEL may be unpaid, but the employee may elect to substitute any accrued paid leave, including emergency paid sick leave, during this period. After the first two weeks of leave, employees are entitled to be paid at a rate of no less than two-thirds their regular rate of pay, as defined by the FLSA, up to a maximum of $200 per day.

A: Employers are required to use a weighted average of the employee’s regular rate of pay for the purposes of PHEL, following this two-step method:

  1. Use the rules contained in the Fair Labor Standards Act (see a summary here) to compute the regular rate for each full workweek in which the employee has been employed over the lesser of:
    • The six-month period ending on the date on which the employee takes leave; or
    • The entire period of employment;
  2. Compute the average of the weekly regular rates, weighted by the number of hours worked for each workweek.

A: A part-time employee is entitled to leave for their 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. 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 their employment.

A: Yes, according to Department of Labor (DOL) guidance. The DOL says that the law requires employers 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, employers aren't required to pay the overtime premium for PHEL provided in excess of 40 hours, according to Department of Labor guidance.

A: At the end of PHEL, the employer must generally return the employee to the same or equivalent position they had before they took the leave. However, employers with fewer than 25 employees are exempt from this requirement if:

  • The employee's position doesn't exist after PHEL due to economic conditions or other changes in operating conditions that affect employment and were caused by a public health emergency during the period of leave;
  • The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held before the leave; and
  • The employer makes reasonable efforts to contact the employee if an equivalent position becomes available within the next year.

A: Total leave under the federal FMLA, including PHEL and for previously existing FMLA-qualifying situations, is generally limited to 12 weeks. For instance, if an employee uses 12 weeks of PHEL, they generally wouldn't be eligible for another 12 weeks of federal FMLA for the birth of a child (another FMLA-qualifying event) in the same 12-month period. However, several states have their own family and medical leave laws and, unless the state law is amended, it is possible the employee could be eligible for additional leave under state law in certain scenarios.

Note: The federal FMLA has an exception to the 12-week limit in the case of leave to care for a covered servicemember with a serious injury or illness, which has a 26-week limit. In cases in which employees use this type of leave and PHEL, the employee would be limited to a total of 26 weeks of leave in a single 12-month period, unless state law requires more.

A: Under existing FMLA rules, when spouses work for the same employer and each spouse is eligible to take FMLA leave, the law limits the combined amount of leave they may take for some, but not all, FMLA-qualifying leave reasons. However, the Families First Coronavirus Response Act didn't address PHEL when spouses work for the same employer. Barring subsequent Department of Labor (DOL) guidance or rules indicating otherwise, employers may be required to provide up to 12 weeks of PHEL to each spouse if their child's school/daycare is closed.

Note: In a temporary rule issued on April 1, 2020, the DOL made an important clarification that leave "to care for a son or daughter" whose school/daycare is closed is permitted only if no other suitable person is available to care for the son or daughter during the period of such leave.

A: The first 2 weeks of PHEL/Expanded FMLA, may be unpaid under the FFCRA. During this time, if the employee does not elect to use or has already exhausted their emergency paid sick leave allotment, the employee may elect – or the employer may require the employee – to use their accrued employer-provided leave (such as vacation or PTO), which will run concurrently with the unpaid PHEL/Expanded FMLA time.

After the first two weeks of PHEL/Expanded FMLA, an employer may require an employee taking such leave to simultaneously use paid leave available to the employee under an employer-provided paid leave program, such as vacation time or PTO, so that this time will run concurrently with PHEL/Expanded FMLA. If the employer requires employer-paid time to run concurrently with PHEL/Expanded FMLA, the employer must pay the employee their full pay during the leave until the employee has exhausted available paid leave under the employer's plan. However, the employer is only entitled to tax credits for wages paid at 2/3 of the employee's regular rate of pay, up to the daily and aggregate limits. If the employee exhausts available paid leave under the employer's plan, but has more PHEL/Expanded FMLA available, the employee will receive any remaining PHEL/Expanded FMLA in the amounts subject to the daily and aggregate limits in the FFCRA.

Additionally, after the first two weeks or 10 days of PHEL/Expanded FMLA, when an employee is entitled to be paid at two-thirds of their regular rate of pay up to $200 per day, the employer and employer may agree to have employer-provided leave supplement paid EFML, so that the employee will be paid the full amount of their normal pay. For instance, the employer and employee may agree that the employee will use one-third of an hour of accrued employer-provided paid leave for each hour of EFML taken.

Note: The employer may not require an employee to use employer-provided paid leave for the 80 hours, or two weeks of emergency paid sick leave.

A: Yes. The DOL has provided a growing list of answers to frequently asked questions, other guidance, and a temporary rule. The agency continues to update this guidance regularly, so check back for updates.

Tax Credits

A: Under the law, all employers with fewer than 500 employees are allowed a credit against certain employer taxes for qualified paid sick leave wages paid by the employer. The credit is increased by specified health expenses (such as, employer-paid health plan premiums) that are excluded from employees' income.

The tax credit effectively reduces the amount of federal employment taxes that must be deposited with the IRS, usually within a few days of the payroll date. This is intended to provide the funds needed to pay sick and family leave benefits under the law. However, in some cases, such as complete closure of a business, the Treasury Department and IRS will process claims for advance payments of the tax credit.

Because the credit is fully refundable, employers will receive reimbursement of the amount paid, subject to the caps, even if their tax liability is less than the amount paid out in the required leave. Emergency paid sick leave and PHEL wages paid are also exempt from Social Security taxes otherwise imposed on the employer.

A: Yes. For the purposes of the credit, the leave wages taken into account cannot exceed the caps discussed above for emergency paid sick leave and PHEL.

A: The credits cover 100 percent of up to 10 days of the qualified sick leave wages and up to 10 weeks of the qualified PHEL/Expanded FMLA wages (and any qualified health plan expenses allocable to those wages) that an eligible employer paid during a calendar quarter, plus the amount of the eligible employer's share of Medicare taxes imposed on those wages.

Example: An eligible employer pays $10,000 in qualified sick leave wages and qualified PHEL/Expanded FMLA wages in Q2 2020. It doesn't owe the employer's share of Social Security tax on the $10,000, but it will owe $145 for the employer's share of Medicare tax. Its credits equal $10,145, which include the $10,000 in qualified leave wages plus $145 for the eligible employer's share of Medicare tax. This amount may be applied against any federal employment taxes that the eligible employer is liable for on any wages paid in Q2 2020. Any excess over the federal employment tax liabilities is refunded in accordance with normal procedures.

A: Employers will report their total qualified leave wages (and allocable qualified health plan expenses and the eligible employer's share of Medicare tax on the qualified leave wages) for each quarter on their federal employment tax return, usually Form 941, Employer's Quarterly Federal Tax Return.

In anticipation of receiving the credits, eligible employers can fund qualified leave wages by accessing federal employment taxes related to wages paid between April 1, 2020 and December 31, 2020, including withheld taxes, that would otherwise be required to be deposited with the IRS. This means that in anticipation of claiming the credits on the Form 941, eligible employers can retain the federal employment taxes that they otherwise would have deposited, including federal income tax withheld from employees, the employees' share of Social Security and Medicare taxes, and the eligible employer's share of Social Security and Medicare taxes with respect to all employees. The Form 941 will provide instructions about how to reflect the reduced liabilities for the quarter related to the deposit schedule.

A: The IRS says an eligible employer won't be subject to a penalty under section 6656 of the Internal Revenue Code for failing to deposit federal employment taxes relating to qualified leave wages in a calendar quarter if:

  • The employer paid qualified leave wages to its employees in the calendar quarter before the required deposit;
  • The amount of federal employment taxes that the employer doesn't timely deposit is less than or equal to the amount of the anticipated tax credits for these qualified leave wages for the calendar quarter as of the time of the required deposit; and
  • The employer didn't seek payment of an advance credit by filing Form 7200, Advance Payment of Employer Credits Due to COVID-19, with respect to any portion of the anticipated credits it relied upon to reduce its deposits.

For more information about the relief from the penalty for failure to deposit federal employment taxes, see IRS Notice 2020-22.

A: The amount of qualified health plan expenses taken into account in determining the credits generally includes both the portion of the cost paid by the employer and the portion of the cost paid by the employee with pre-tax salary reduction contributions. However, the qualified health plan expenses should not include amounts that the employee paid for with after-tax contributions.

A: The IRS says an employer can substantiate eligibility for the credits if the employer receives a written request for emergency paid sick leave or PHEL from the employee in which the employee provides:

Employee information and reason for leave:

  • The employee's name;
  • The date or dates for which leave is requested;
  • The COVID-19 related reason the employee is requesting leave and written support for such reason; and
  • A statement that the employee is unable to work, including by means of telework, for such reason.

Supporting documentation:

Additional documentation is required depending on the reason for the need for leave:

  • A quarantine or isolation order: the government entity that issued the order.
  • A healthcare provider advised self-isolation: the name of the healthcare provider. Note: If the person subject to quarantine, isolation, or self-quarantine isn't the employee, the documentation should also include the person's name and relation to the employee.
  • To care for a son or daughter. An employee should also provide their child's name, the name of school or place of care that's closed, and a representation that no other suitable person will be caring for the child during the period for which the employee takes leave under the FFCRA. Note: If the employee's inability to work or telework is because of a need to provide care for a child older than 14 during daylight hours, the documentation should also include a statement that special circumstances exist requiring the employee to provide care.

Additional documentation:

Employers should also retain:

  • Documentation to show how the employer determined the amount of qualified leave wages paid to employees that are eligible for the credit, including records of work, telework and qualified leave.
  • Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages.
  • Copies of any completed Forms 7200 that the employer submitted to the IRS.
  • Copies of the completed Forms 941 that the employer submitted to the IRS (or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third-party payer regarding the employer's entitlement to the credit claimed on Form 941).

A: Five new earnings are now available in RUN Powered By ADP® to support the FFCRA. These new earnings can be used for covered COVID-19-related time off taken between April 1 and December 31, 2020. Time off taken prior to April 1, 2020, due to Coronavirus should be coded under your company's existing paid time off policies and earnings.

A: The IRS provides additional guidance here.