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The subject matter experts at Apex have compiled answers to some of the top questions being posed to us by our clients and outlined in the recently passed emergency aid package, Families First Coronavirus Response Act.
The DOL has issued preliminary guidance located HERE. For comprehensive FAQs, please see below.
What employers are eligible for Emergency FMLA?
‘Fewer than 500 employees’ for ‘50 or more employees for each working day during each of 20 or more calendar work weeks in the current or preceding calendar year.’
What employers are eligible for Paid Sick Leave?
It defines employers as and applies to:
- A private entity or individual who employs fewer than 500 employees;
- A public agency or entity that employs one or more employees;
- An entity employing a state employee;
- An employing office;
- An executive agency; or
- Any successor in interest of an employer.
The Secretary of Labor may exclude from these requirements employers with fewer than 50 employees based on hardship or for employers of health care providers and emergency responders. The process to request an exclusion was not defined.
What employees are eligible for Emergency FMLA?
The Emergency Family and Medical Leave Expansion Act changes the definition of “eligible employee” to apply to anyone employed at least 30 days (rather than 12 months per the regular FMLA rules).
What employees are eligible for Paid Sick Leave?
An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
- The employee has 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 is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
- 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 childcare provider of such son or daughter 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.
Note: If you are able to telework, you are not sick. Paid sick leave is available if employee cannot work or telework because of a qualifying coronavirus-related absence
What about returning employees to the same position as in traditional FMLA?
Does NOT require employers with fewer than 25 employees to return an employee to their same position of employment after taking leave if:
- The position no longer exists due to economic conditions or operational changes caused by the COVID-19 emergency,
- The employer makes reasonable efforts to restore the employee to an equivalent position (benefits, pay, and other terms), and
- The employer makes reasonable efforts to contact the employee if such equivalent positions become available within one year from the earlier of the date when the qualifying need concludes or 12 weeks after the date on which the employee’s leave commences.
What do I have to provide employees as far as notice for the Emergency Paid Sick Leave Act?
Employers must publish a Notice regarding Emergency Paid Sick Leave in a conspicuous location where labor posters are customarily displayed.
VIDEO: Families First Coronavirus Response Act
Apex Benefits and Axiom Human Resource Solutions Walk Through the Families First Legislation
The subject matter experts at Apex Benefits teamed with experts at its sister company, Axiom Human Resource Solutions, to discuss key points of the FFCRA.
Is the DOL going to provide guidance notice for Emergency Paid Sick Leave?
The Department of Labor will publish within 7 days model notices for display and distribution for employers.
How long do employees have access to emergency paid sick leave?
The Emergency Paid Sick Leave does not roll over into 2021
How much time is Emergency FMLA?
12 weeks total. The first 10 days of this expanded FMLA leave may be unpaid. However, employees are permitted to use accrued personal or sick leave during the first 10 days.
The remaining 10 weeks are paid at 2/3 of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work (with a maximum payment of $200 per day and $10,000 total)
How much time is Paid Sick Leave?
For full-time employees, 80 hours. For part-time employees, a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.
For Emergency Paid Leave, is the eighty hours in addition to PTO and other state and local paid sick leave laws?
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.
How much do I pay employees for Emergency FMLA?
The first 10 days of this expanded FMLA leave may be unpaid. However, employees are permitted to use accrued personal or sick leave during the first 10 days.
After the first 10 days, employers must compensate employees at a rate not less than two-thirds of the employee’s regular rate of pay while the employee is on leave. Pay is not to exceed $200 per day and $10,000 in the aggregate.
How much do I pay employees for Paid Sick Leave?
An employee’s required compensation shall not be less than the greater of:
- The employee’s regular rate of pay,
- The federal minimum wage rate, or
- The minimum wage rate in affect in the applicable state or locality.
If such paid sick time is provided due to leave for care of an individual under quarantine, care of a child, or because employee is experiencing a substantially similar condition (rather than a government quarantine or isolation order, a health care provider order to self-quarantine, or because the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis of the same, see above), then the employee’s required compensation shall be two-thirds of the required amount calculated here.
In no event shall such paid sick time exceed $511 per day and $5,110 in the aggregate for leave because of these specific reasons: (1) a government quarantine or isolation order, (2) a health care provider order to self-quarantine, or (3) the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis of the same.
In no event shall such paid sick time exceed $200 per day and $2,000 in the aggregate for leave because of these specified reasons: (4) to care for an individual under quarantine, (5) to care for a child, or (6) because employee is experiencing a substantially similar condition as set forth by the Secretary of HHS.
What about Emergency FMLA and a variable hour employee?
If schedule variations make an employer unable to determine a normal number of hours for an employee, the employer shall:
- Use an average number per day over the prior six months of employment, or
- Use the reasonable expectation of the employee at the time of hiring of the average number of hours per day if the employee has not yet worked for six months.
What about retaliation for Paid Sick Leave?
Employers shall not discharge, discipline, or in any other manner discriminate against any employee who—(1) takes leave in accordance with this Act; and (2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding.
Can you provide unemployment information?
- EmployIndy and WorkOne said Hoosiers can still file for unemployment insurance online via a computer or smartphone through the Indiana Department of Workforce Development: https://www.in.gov/dwd/2334.htm. They also can call the unemployment insurance help line at 1-800-891-6449.
- The Indiana Department of Workforce Development will allow individuals to continue to accrue unemployment eligibility if they take work leave because of COVID-19.
- Indiana DWD will seek federal authorization to provide unemployment benefits for those who are not otherwise eligible for unemployment, such individuals who have recently started a job.
- For employers, Indiana DWD will not assess certain experience rate penalties because of employees who receive unemployment benefits because of COVID-19.
How much notice must the employee use when requesting Emergency FMLA?
Where the need for leave is foreseeable, employees must provide their employers with notice as practicable.
When the company closes its operations temporarily, must non-exempt employees be paid?
Non-exempt (hourly) employees need to be paid only for actual hours worked. The company may:
- Pay the employee for the time, even though they did not work;
- Require they take the day off unpaid;
- Require they use any available vacation time or PTO; or
- Allow employees to choose between taking an unpaid day or using vacation or PTO
When a company closes temporarily, must exempt (salaried) employees be paid their salary?
- Yes, whether the office closure is for full or partial days. Employers may require exempt employees to use accrued vacation or PTO during a closure if there is a policy that indicates the employer will do so, or if this has been the employer’s practice in the past.
- For exempt (salaried) employees who do not have sufficient vacation or PTO to cover the closure, employers are still required to provide them with their full regular salary. The only scenario where you will not be required to pay an exempt employee their full salary is if the office is closed for an entire workweek (or the employee is unable to come in for an entire workweek) and they do no work at all from home.
This blog is provided by Apex Benefits as a public service for informational and educational purposes only. Use of the content on this site does not constitute legal advice and does not create an attorney-client relationship, as Apex Benefits is not a law firm or engaged in the practice of law. The information provided is general and should not be relied on as legal advice, which cannot be provided without full consideration of all relevant information relating to specific situations.