It is UniqueHR’s goal to keep our clients updated and at the front lines of any regulatory and policy changes due to the COVID-19 pandemic. On March 18, 2020, the Senate passed the Families First Coronavirus Response Act which was signed by the president that same evening. The Act is an economic stimulus plan aimed at addressing the impact of the COVID-19 outbreak on Americans and introduces paid sick leave and an expanded family and medical leave act to employers. In an effort to keep you apprised of this Act and how it would affect you, the employer, click on the link to our employment legal counsel, Fisher Phillips, discussing the Act and how it applies to employers. Please note that the leave provisions will go into effect on April 1, 2020 and will continue in effect until December 31, 2020.
Key provisions to note about the Act are the following:
Emergency Paid Sick Leave:
All employees of employers with fewer than 500 employees, regardless of the length of their tenure with their employer, are eligible for paid sick leave under the Emergency Paid Sick Leave Act. The Secretary of Labor has the authority to exempt certain health care providers and emergency responders, and small businesses with fewer than 50 employees if the Act would jeopardize a business’s viability. However, at this time, it is not known if the Secretary of Labor will provide this exemption and what would be required to obtain the exemption.
Qualifying Reasons for Taking Paid Sick Leave:
An eligible employee may take paid sick leave if he/she is unable to work (including telework) because:
- The employee is subject to a federal, state, or local quarantine or isolation due to COVID-19;
- A health care provider advised the employee to self-quarantine due to concerns related to COVID-19 (self-imposed quarantine without medical advice does not qualify under the Act);
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual (not limited to family members, although there is a stray reference to family members elsewhere in the Act, so stay tuned) who is either subject to a federal, state, or local quarantine or isolation due to COVID-19 or has been advised to self-quarantine due to concerns related to COVID-19;
- The employee is caring for the employee’s child whose school has been closed or place of care is unavailable due to COVID-19 precautions; or
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of Treasury and Labor. The precise meaning of this sixth reason will be clarified by the Secretary of Health and Human Services.
Full-time employees receive 80 hours of paid sick leave. Part-time employees receive the equivalent of the number of hours they would work, on average, during a two-week period. There is a separate method for calculating the benefit for part-time employees whose schedules vary widely from week to week. For qualifying reasons 1, 2, and 3 (above), eligible employees will receive paid sick leave at their regular rate, except that in no event shall the amount paid exceed $511 per day and $5,110 in total. For qualifying reasons 4, 5, and 6 (above), eligible employees will receive paid sick leave at two-thirds of their regular rate, except that in no event shall the amount paid exceed $200 per day and $2,000 total. Paid sick leave does not carry over from one year to the next and paid sick time ceases beginning with an employee’s next scheduled work shift immediately following termination of the need for paid sick time (i.e., qualifying need). The Secretary of Labor is required to issue guidelines to assist employers in calculating leave benefits by April 1. Employers cannot retaliate (discharge, discipline, or discriminate) against an employee who takes paid leave under the act.
The employer can seek reimbursement for the wages paid to employees taking emergency paid sick leave through quarterly tax credits applicable to the employer’s portion of Social Security taxes. Additionally, Wages paid for sick leave are not subject to the 6.2% social security tax. employers will receive a tax credit equal to 100% of the qualified sick leave wages paid. However, that credit is limited to $200 or $511 (depending on the reason for the sick leave) per day per employee taking such paid leave and cannot exceed the social security taxes (6.2% of the employee’s salary up to $137,700 of the total salary) paid by the employer for all employees during the applicable calendar quarter.
- Use: All eligible employees may use paid sick time beginning on April 1. Employers may not require eligible employees to first use other paid leave provided by the employer before using paid sick leave under the Act, so this leave is in addition to any paid sick leave or PTO currently provided by employers.
- Employer Posting Requirement: Employers must post a notice that advises employees of their rights under the Act. The Secretary of Labor is required to create a notice by March 25.
- Employee Notice Requirement: After the first workday on which the employee receives paid sick leave, the employer can require the employee provide reasonable notice to continue to receive the paid sick leave. Employers may not require employees to provide advance notice prior to the first workday on which the employee takes paid sick leave under the Act.
Extended Family Medical Leave Act (FMLA)
Under normal circumstances, the Family and Medical Leave Act applies only to employers with 50 or more employees, applies only to employees who have worked for at least 12 months and who had worked at least 1,250 hours during that preceding 12 months, and provides unpaid leave for designated reasons, such as the employees own serious health condition, to care for a family member with a serious health condition, or to care for a newborn infant or an adopted child or foster child placed with the employee. On a temporary basis, the Emergency FMLA Expansion Act amends the FMLA and creates a new leave entitlement. For purposes of the new entitlement only, the Act alters the definition of employer to include all employers with fewer than 500 employees, and expands the definition of a covered employee to include all employees who have worked for covered employers (i.e., those with less than 500 employees) for at least 30 days. Again, the Secretary of Labor has the authority to exempt from the Emergency FMLA Expansion Act certain health care providers and emergency responders, and small businesses with fewer than 50 employees if the Act would jeopardize a business’s viability.
Qualifying Reason for Taking Expanded FMLA Leave:
An eligible employee may take up to 12 weeks of leave if he/she is unable to work (including telework) because the employee must care for his/her child who is under 18 years of age and whose school or place of care has closed due to the COVID-19 public health emergency. Quarantine will not trigger Emergency FMLA leave provisions.
A qualifying employee may take up to 12 weeks of leave. The initial 10 days of leave are unpaid, but the employee may elect to use his/her accrued paid sick leave and/or accrued vacation during this otherwise unpaid period. After the initial 10-day period, an employee is entitled to receive from the employer two-thirds of his/her normal wages for the number of hours he/she would be regularly scheduled to work, up to a maximum of $200 per day and $10,000 in total.
All eligible employees may apply for expanded FMLA leave beginning on April 1. If the necessity for leave is foreseeable, the employee must provide the employer with “such notice of leave as is practicable.”
Restoration to Position:
For employers with 25 or more employees, an employee returning from expanded FMLA leave is entitled to reinstatement to the same or an equivalent position. For employers with fewer than 25 employees, an employee returning from expanded FMLA leave is entitled to reinstatement to the position held by the employee when the leave commenced unless that position does not exist due to economic conditions or other changes in operating conditions caused by the public health emergency. In such case, the employer must make reasonable efforts to restore the employee to an equivalent position, and if those efforts fail, make reasonable efforts for at least a year to contact the employee if an equivalent position becomes available.
Employee Notice Requirement:
Employees must provide the employer with “notice of leave as is practicable.”
Employers will be provided refundable tax credits quarterly against their employer portion of Social Security taxes for 100% of the qualified family leave wages paid in accordance with the Act. Additionally, Wages paid for leave are not subject to the 6.2% social security tax. However, that credit is limited to $200 per day and $10k in the aggregate per employee taking such paid leave and cannot exceed the social security taxes (6.2% of the employee’s salary up to $137,700 of the total salary) paid by the employer for all employees during the applicable calendar quarter.
COVID – 19 Testing for Families & Individuals:
- All group health insurance plans must pay for FDA approved COVID-19 diagnostic testing, without requiring a co-pay, including the following if related to administration and testing or evaluation for testing: related office, telehealth, urgent care, and ER Visits. Further they cannot require pre-approval for testing of any COVID-19 related care. Cost sharing under Medicare, Medicaid, CHIP, and Tricare is waived, as well as coverage for any Veterans and Federal workers. This does not extend to COVID-19 treatment.
- Physical presence requirements are waived for food assistance (SNAP and WIC). If a school is closed for 5 or more consecutive days during a public health emergency (and would otherwise be open), each household with at least 1 eligible child attending the school is eligible to receive assistance under SNAP (in lieu of the free meals they would receive at the school).
Additionally, we have attached a Comprehensive and Updated FAQs For Employers authored by Fisher Phillips that is a valuable resource for employers on how to handle employment matters surrounding COVID-19.
We have also compiled a list of resources to help you stay updated as an employer and educated on COVID-19:
- Texas Workforce Commission (TWC): https://twc.texas.gov/news/covid-19-resources-employers
- Texas Department of Insurance (TDI): https://www.tdi.texas.gov/news/2020/coronavirus-updates.html
- Department of Labor (DOL): https://www.dol.gov/coronavirus
- OSHA Guidance on preparing the workplace: https://www.osha.gov/Publications/OSHA3990.pdf
- Center for Disease Control (CDC): https://www.cdc.gov/coronavirus/2019-ncov/index.html
- Presidential Guidelines: https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_315PM.pdf
- World Health Organization (WHO): https://www.who.int/emergencies/diseases/novel-coronavirus-2019
Please know that we are doing our very best to stay current with the constantly changing environment surrounding COVID-19, and we will in turn do our best to notify you of any developments that impact our clients. Of course, if you should have any questions or need assistance, please do not hesitate to reach out to our Human Resources department. If you should have any questions relating to how UniqueHR is handling COVID-19, please see our COVID-19 Emergency Plan found here:
We wish all of our clients the best during this difficult time, and we encourage everyone to please stay healthy and safe. The wellbeing of our team members and clients is vitally important to us, and their health and safety are paramount. We are committed to supporting our clients during this time of uncertainty, and we will provide updates as we receive them.
For more information about COVID-19 laws, regulations and provisions, click here.
This communication is for informational purposes only; it is not legal, tax or accounting advice; and should not be acted upon as such. Please consult your attorney/CPA/Accountant regarding any decisions that impact your company or your employees. This post may contain hyperlinks to websites operated by parties other than UniqueHR. Such hyperlinks are provided for reference only. UniqueHR does not control such websites and is not responsible for their content.