FFCRA DOL Healthcare Update
Healthcare Employers Spared Burden of FFCRA By Last Minute DOL Guidance
Last updated 3.30.2020
The Families First Coronavirus Response Act created a bizarre contradiction for healthcare employers. While hospitals, clinics and other patient care providers worked under great strain to care for patients, with COVID-19 and other maladies, the Act would have permitted employees of health care providers to be absent from work, sometimes with pay, in some situations for up to 12 weeks. Saturday afternoon, the
DOL issued new guidance to greatly expand the scope of employees that healthcare providers can exclude from the leave rights under FFCRA, sparing providers from crippling staff shortages during this pandemic.
FFCRA permitted employers to elect to exclude health care providers and emergency responders from the leave rights created by the act. However, the act did not define emergency responder, and borrowed the FMLA’s narrow definition of health care provider. As the act was written, health care employers could exclude only doctors, nurse practitioners and physicians’ assistants, along with a handful of other licensed professionals, from the leave rights under the act. Notably, RNs, LPNs and CNAs were not on the list of employees that could be excluded, nor were pharmacists, pharmacy techs, any type of therapists, or any of the support staff necessary to operate a hospital, nursing home or medical practice.
DOL’s Q&A greatly expanded the definitions of health care provider and emergency responder to permit employers to exclude a broad cross-section of employees from the leave rights:
“a health care provider is
anyone employed at
any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency,
nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.
An emergency responder is now defined as:
“. . . an employee who is
necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters,
emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel,
and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.”
These definitions appear sufficiently broad to allow a health care employer to exclude any employee from the leave rights under FFCRA.
Along with these expanded definitions, the DOL encourages employers of healthcare providers and emergency responders to be “judicious” when excluding employees from the leave rights under the Act because of the overarching need to minimize the spread of the virus.
The new Q&A guidance did not inform employers how to elect to exclude categories of employees. We suggest that you notify employees individually via email or memo if you intend to exclude them from exercising FFCRA leave rights, and the sooner the better in advance of the April 1 effective date. However, a general communication that identifies categories of employees who are excluded should satisfy the act’s requirements for larger employers.
Keep in mind, if you have 50 or more employees, or if your entity is a public agency, you are covered by the Family and Medical Leave Act, regardless of the FFCRA. As a result, some of your employees may be eligible for leave for their own serious health condition or to care for a family member with a serious health condition, even if you exclude them from the FFCRA.
Families First Coronavirus Response Act – Sick Leave
Last updated 3.20.2020
New Federal Legislation Requires Employers to Provide Emergency Paid Sick Leave
The Emergency Paid Sick Leave Act ("EPSLA"), passed by Congress on March 18, 2020, requires private employers with five hundred (500) or fewer employees, and public agencies with at least one employee, to provide up to eighty (80) hours of paid emergency sick leave for certain qualifying coronavirus-related reasons.
Covered employers must give emergency paid sick time to any employee, regardless of the length of employment, for a qualifying emergency related to the coronavirus.
The EPSLA takes effect on April 2, 2020 and remains in effect until December 31, 2020. Emergency sick leave may be used by employees starting April 2, 2020 and running through the first pay period following the formal declaration of the end of the current coronavirus emergency.
The EPSLA applies to private employers with five hundred (500) or fewer employees and public agencies with at least one employee.
Paid sick time is available for immediate use regardless of how long the employee has been employed. It applies to full time and part time employees, regardless of the employee’s FLSA exemption status.
Qualifying Reasons for Paid Sick Leave
An employee may only take paid sick time if the employee is unable to work or telework due to a need for leave because one of the following situations has occurred:
Amount of Leave Available
Full-time employees are entitled to 80 hours of emergency paid sick leave and part-time employees are entitled to a proportionately similar amount, based on the average number of hours they work in a two-week period. Sick leave provided under the EPSLA does not carry over from one year to the next and is not paid out upon the termination of an employee’s employment.
Calculating Rate of Pay
If the employee is taking leave for their own care (reasons 1, 2, and 3 above), then the paid sick time is compensated at the employee’s regular rate (but not less than the applicable federal, state, or local minimum wage) capped at $511 per day (which would apply to someone making more than $130,000 per year) or $5,110 in the aggregate.
If the employee is taking leave to care for someone else or for a related condition specified by the Secretary of Health and Human Services (reasons 4, 5, and 6 above), then the paid sick time is compensated at two-thirds their regular rate capped at $200 per day or $2,000 in the aggregate. Regular rate is determined using the FLSA definition.
Impact on Other Paid Leave
The employee must be allowed to use paid sick time under the Act before using any other accrued paid time off. Emergency paid sick time is used in addition to any paid leave entitlement(s) already existing under an employer’s policies. The EPSLA does not interfere with benefits already provided under Federal Law, State Law, Local Law, Employer Policies, or an existing Collective Bargaining Agreement, it is simply a benefit provided in addition to existing benefits. Employers may not change their paid leave policies on or after the date of the Act’s enactment to avoid providing the additional two weeks of emergency paid sick time.
A link to new legislation can be found
3.26.20 COVID-19 Employment Law Update
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.
Families First Coronavirus Response Act – Tax Credits
Employers required to provide paid emergency sick leave or paid extended family medical leave under the
Families First Coronavirus Response Act are eligible for a refundable tax credit equal to 100 percent of qualified leave wages paid by the employer during the period from April 1, 2020 to December 31, 2020 for qualifying leave taken by employees during that same period. The amount of the tax credit is increased by the employer’s share of Medicare taxes on qualifying leave and the cost of providing group health plan benefits allocable to the employees receiving qualifying leave.
While the original language of the FFCRA provided that the credit could be obtained by offsetting the employer’s portion of Social Security taxes owed for a quarter, the IRS has now issued guidance stating that the credit can be obtained by accessing all federal payroll taxes of the business for the relevant pay period as explained in more detail below. If the available credit for providing the required leave payments exceeds the amount of such payroll taxes, the employer may request a refund for the excess amount of the credit for the quarter. An employer with qualified leave wages may elect not to have the credit apply and may instead claim a deduction for the leave wages paid.
Source of Funds – Details
To mitigate cash flow concerns, the
IRS announced guidance on March 31, 2020 that allows employers to recover a significant portion of the cost of paid leave simultaneously with paying the leave in that payroll period. IRS guidance now allows:
To better assist employers substantiate the ability to claim a tax credit, provided below is a summary of the recordkeeping requirements associated with claiming tax credits:
Employers to retain (and not deposit) all federal payroll tax deductions for the payroll period: the federal income tax withheld from all employee wages, employer Social Security and Medicare taxes, and employee Social Security and Medicare withheld from all employee wages.
If the amount of such payroll taxes is not sufficient to cover the cost of the qualifying leave paid for the period, employers may file a Form 7200 and request a refund of remaining tax credit from the IRS.
Employers may file several Forms 7200 during a quarter to claim an advance payment of the tax credit the employer will claim on the Form 941 for that quarter. Refunds should be issued within 2 weeks of filing the Form 7200.
Employers must satisfy significant recordkeeping requirements in order to substantiate the tax credits claimed for paying qualifying leave. Employers should retain these records for at least 4 years. These records include how the employer determined whether employees were entitled to qualifying leave, calculated the credit, and determined allocable health costs. Employers should retain copies of any Forms 7200 filed with the IRS and the Forms 941 upon which credits were claimed.
Employers claiming a tax credit must obtain a statement from the employee substantiating that the leave request constitutes qualifying leave. This statement should include the employee’s name, the applicable dates of the requested leave, the COVID-19 related reason the employee is requesting leave with written support for such reason, and a statement that the employee is unable to work, including by means of telework, for such reason.
If employees are requesting leave due to a quarantine, the employee must provide the agency or person requiring such quarantine.
If the employee is requesting leave due to a school closure, the employee must provide the name and age of the student, the name of the closed school, and a description of the circumstances that require the employee to take care of the student.
POLICIES AND PROCEDURES
Work From Home
Last updated 3.15.2020
As required and self-imposed quarantine issues arise, as well as government directions to limit gatherings and shut down schools continue, employers are considering (or are being forced to consider) allowing or requiring portions of their workforce to work from home.
Employers have significant discretion to structure these programs, from deciding which employees may be eligible, setting expectations related to work productivity, establishing different or revised work schedules, and maintaining system security.
No policy is a one-size-fits-all, but below are highlights of the issues employers should consider and implement:
Employers should consider what types of work positions are conducive to working remotely, considering job duties, access to systems or files, and ability to complete tasks by email or telephone.
Generally, only employees in good standing based on prior performance, attendance records, and ability to work without significant direct supervision are good candidates. Employees working remotely should be trustworthy and self-starters.
Employers can set a minimum tenure requirement, such as working for the employer for 90-days, in order to be eligible to work from home (otherwise, the employees who do not meet such a tenure requirement may be subject to other types of leaves or reductions in force).
Employees who do not maintain sufficient performance or comply with the work from home policy or requirements, may not remain eligible to work from home.
Home-based Working Conditions
All eligibility decisions are made at the full discretion of the employer.
Be clear that employees are expected to maintain the work performance requirements listed in their job descriptions or as outlined by their manager.
Set expectations (even if temporarily lowered to account for a shorter workday, lower production level, or the reality that if schools are shut down, there will be other distractions for the employee).
IT and Security Concerns
Be clear that employees are expected to dedicate a quiet, secluded, and disturbance free home-work “office” to the extent possible. Distractions from children, animals, or other disturbances should be minimized during the work from home-work schedule.
Employers should consider whether they will provide all necessary equipment; if they do, then employers can ensure that all required security, firewall, and other IT considerations are in place. A process for returning equipment when employment ends should be defined.
Consider whether employees will be required to have high-speed Internet or a dedicated land-line (if requiring a land-line on an emergency basis such as a COVID-19 shutdown, it may not be a realistic requirement depending on the relevant phone company’s availability).
If employees are allowed to use their own equipment and computer, the employer should set out specifically the data security requirements and programs that the employee must utilize, download, etc.
Determine what company systems the employees can and should be allowed access to while working remotely.
Implement increased security measures, if possible, to lock down the most mission-critical employer data from being accessed by any unauthorized individuals remotely.
Small Business Coverage Under the Paid Leave Provisions of the FFCRA
Last updated 4.17.2020
As covered elsewhere in this site, under the FFCRA, all private employers that employ fewer than 500 employees must comply with the emergency paid sick leave (EPSLA) and paid family leave (EFMLEA) provisions of the coronavirus relief legislation. The
statute does not distinguish between for-profit and non-profit entities; employers of both types must comply with the FFCRA if they otherwise meet the requirements for coverage.
While small businesses typically have fewer than 500 employees, they may be exempted from these requirements due to US Department of Labor
regulations promulgated at the beginning of April. Specifically, the DOL regulations clarify when small businesses that are affiliated with larger entities may be treated as a single employer for purposes of counting the 500 employee coverage threshold and when certain small businesses with less than 50 employees otherwise may be exempted from the paid leave requirements under the statute.
As a general matter, all full-time and part-time employees in the United States (including all of its territories) are counted towards the 500 employee coverage threshold, regardless of whether the employees are currently on leave, supplied by a temporary placement agency, or are day laborers. It is clear that a corporation with multiple establishments or divisions is considered to be one employer and all of its employees count towards the 500 employee coverage marker.
The trickier question is what happens when a corporation has an ownership interest in another corporation, such as a when a larger corporation has an ownership stake in a small business. In this circumstance, each corporation is considered a separate employer unless the two corporations (1) qualify as joint employers under the Fair Labor Standards Act (FLSA), or (2) satisfy the integrated employer test under the Family Medical Leave Act (FMLA).
Joint Employer Rule Under FLSA
The DOL’s new
FLSA joint employer rule took effect on March 16, 2020. While the test is flexible, it typically looks at whether two (or more) entities share the power to: (1) hire or fire employees; (2) supervise and control employee’s work schedules or conditions of employment; (3) determine the employees’ rate and method of payment; and (4) maintain the employees’ employment records. If two separate entities are found to be joint employers, all of their common employees count towards the 500 employee threshold under the EPSLA and and EFMLEA.
FMLA Integrated Enterprise Test
The DOL’s integrated enterprise test under the FMLA considers the extent to which two (or more) entities have: (1) common management; (2) interrelation between operations; (3) centralized control of labor relations; and (4) the degree of common ownership/financial control. If the test is satisfied, then the multiple entities will be considered an “integrated employer” under the FMLA and all of their employees together will count towards the 500 employee threshold.
The Small Business Exemption
The FFCRA provides an exemption for employers with fewer than 50 employees from providing paid sick and family/medical leave.
To qualify, the small business employer must keep a written record showing that:
For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave to otherwise eligible employees. The business need only keep a written record in its own files of its denial of leave and its qualifying reasons; it need not submit anything in writing to the Department of Labor.
In exercising its authority to exempt certain employers with fewer than 50 employees, the Department stated that it was trying to balance two potentially competing objectives of the FFCRA. “On the one hand, the leave afforded by the FFCRA was designed to be widely available to employees to assist them navigating the social and economic impacts of COVID-19 as well as public and private efforts to contain and slow the spread of the virus. On the other hand, the Department recognizes that FFCRA leave entitlements have little value if they cause an employer to go out of business and, in so doing, deny employees not only leave but also jobs.”
the paid leave would cause the employer’s expenses and financial obligations to exceed available revenues and cause the business to cease operating at a minimal capacity; or
the absence of the employees requesting leave would pose a substantial risk to the financial health or operational capacity of the business because of the employees’ skills, knowledge, or responsibilities; or
the small business cannot find enough other workers to perform the work of the employees requesting leave and this work is necessary to keep the business operating at minimal capacity.
Pay Issues During COVID-19
Last updated 3.16.2020
What's the Problem?
How should employers pay employees who have been sent home involuntarily – either because they display illness symptoms or as a preventative measure (e.g., quarantine after returning from travel to high-risk area).
What to Consider
Pay practices differ based on the specific issue and the employee’s exempt or non-exempt status.
Can I send a non-exempt employee home without pay?
As a general rule, non-exempt employees must be paid for all time actually worked, but need not be paid for time when they perform no work. If an employer sends a non-exempt employee home, the employer should make sure the employee is paid for all work performed while at home. If the employee is sent home because the employee displays signs of illness, the employer would generally be able to mandate that the employee use available paid sick time (subject to certain state law requirements). Employees should be allowed to use other available paid time off in accordance with the employer’s paid time off policies.
A trickier question arises when an employer sends a non-exempt employee home when the employee does not display illness symptoms (e.g., in cases of potential exposure). In those cases, the EEOC may take the position that the employer is perceiving the employee as disabled and, if the employee is sent home without pay, an argument could be made that the employee has suffered damages as a result of perceived disability by the employer. There are counter-arguments, but employers should evaluate each case individually and seek counsel. Employers should bear in mind that some states have specific requirements about use of sick leave, which may vary from the above.
Can I send an exempt employee home without pay?
Exempt employees are typically entitled to payment of their full salary for any week in which they perform work, without deductions made for absences occasioned by the employer or the operating demands of the business. Certain exceptions from that general rule apply in circumstances delineated in the United States Department of Labor’s (USDOL) regulations. These exceptions include deductions in full-day increments for absences due to personal reasons, other than sickness or disability, and deductions in full-day increments for absences caused by sickness or disability if the deduction is made in accordance with a bona fide plan, policy, or practice providing compensation for loss of compensation caused by such sickness or disability, etc. Other exceptions apply. You can reference the USDOL Q&A on COVID-19 issues
The USDOL just released the following guidance:
The FLSA does not require employer-provided vacation time. Where an employer offers a bona fide benefits plan or vacation time to its employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on a specific day(s). This will not affect the employee’s salary basis of payment so long as the employee still receives in payment an amount equal to the employee’s guaranteed salary.
An employee will not be considered paid “on a salary basis” if deductions from the predetermined compensation are made for absences occasioned by the office closure during a week in which the employee performs any work. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work.
So, a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt. For more information, see WHD Opinion Letter FLSA2005-41.
Note of Caution: If an employer sends exempt employees home after the workweek has begun, and these employees have no paid time off available, this may be deemed an “absence occasioned by the demands of the business,” which would entitle the employee to payment for the full workweek. You should seek legal counsel if you encounter such circumstances.
Do I have to pay employees if business shuts down because of a government mandate?
As mentioned above, non-exempt employees are generally not entitled to be paid for periods of time during which they perform no work – even if the reason why the non-exempt employee is not working is a government-mandated shutdown. For exempt employees, the FLSA does not permit employers to make deductions from employees’ pay for partial or even full-day closures of less than an entire workweek, regardless of whether they are caused by the government. The only exception is when the employer’s facility is shut down for an entire workweek, and exempt employees do not perform any work at all during the shutdown. Employers should, however, assess how realistic it is that exempt employees performing no work at all for an entire workweek (e.g., checking e-mails or making phone calls).
Do I have to pay employees their same hourly rate or salary if they work at home?
According to USDOL, if telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then you must pay the same hourly rate or salary. If this is not the case, and you do not have a union contract or other employment contracts, under the FLSA employers generally have to pay employees only for the hours they actually work, whether at home or at the employer's office.
The FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. If the Service Contract Act (SCA) or state or local laws regulating the payment of wages also apply, nothing in the FLSA or its regulations or interpretations overrides or nullifies any higher standards provided by such other laws or authority. (See the U.S. Department of Labor, Wage and Hour Division for additional information on the SCA or call
What other pay-related issues should Employers consider?
Although the FLSA does not require this, employers should consider any potentially-applicable state law requirements regarding reporting pay or predictive scheduling.
Last updated 3.15.2020
ADA AND THE REHABILITATION ACT
The ADA and the Rehabilitation Act, including the requirement for reasonable accommodation and rules about medical inquiries and examinations, continue to apply. Employers continue to have a duty to prevent stigma and discrimination in the workplace. However, these laws do not prevent or interfere with employers' ability to take steps to prevent workplace exposure to COVID-19.
The ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances. During a pandemic, however, if an individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA. A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Assessments of whether an employee poses a direct threat in the workplace must be based on objective, factual information, “not on subjective perceptions . . . [or] irrational fears” about a specific disability or disabilities. The EEOC’s regulations identify four factors to consider when determining whether an employee poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm.
Whether COVID-19 rises to the level of a direct threat depends on the severity of the illness. An assessment by the CDC or state or local health authorities that COVID-19 is significantly more severe than, for example, seasonal influenza, could mean it poses a direct threat. The assessment by the CDC or public health authorities provides the objective evidence needed for a disability-related inquiry or medical examination.
Frequently Asked Questions
EEOC’s Pandemic Preparedness in the workplace and the ADA)
May an employer send employees home if they have influenza-like symptoms during a pandemic?
Yes. Employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.
During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?
Employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
If COVID-19 is like seasonal influenza, these inquiries are not disability-related. If COVID-19 becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.
When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?
No, because this is not a disability-related inquiry. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.
May an employer encourage employees to work remotely as an infection-control strategy?
Yes. In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.
May an employer require its employees to adopt infection-control practices, such as regular hand-washing, and wear personal protective equipment, such as face masks, gloves or gowns, at the workplace?
Yes. These requirements do not implicate the ADA. However, if employers require protective equipment, employees with disabilities who need a reasonable accommodation (e.g., non-latex gloves), must be provided these, absent undue hardship.
May an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?
Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
May an employer require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work?
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against its employees based on race, color, religion, sex and national origin. State anti-discrimination laws may include additional protected classes.
During the COVID-19 pandemic, anti-discrimination laws continue to apply. Employers cannot treat those employees who may be from parts of the world where COVID-19 is prevalent (e.g., those of Asian, Iranian, Italian descent), or any other race/national origin differently, due to fears about the virus.
For example, an employer cannot compel all employees to take the influenza vaccine regardless of their medical conditions or religious beliefs. Under Title VII, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA). Under the ADA, an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense).
Last updated 3.16.2020
Colorado Temporary Rule Mandates Paid Sick Leave
On March 11, 2020, the Colorado Department of Labor and Employment (CDLE) published emergency rules (“Help Rules”) which temporarily require employers in certain industries to provide paid sick leave to employees with flu-like symptoms while awaiting COVID-19 testing. The emergency rules took effect immediately and will remain in place for 30-days, or longer if the state of emergency declared by the Governor continues.
The HELP Rules apply to select industries which include: leisure and hospitality; food services; child care; education, including transportation, food service, and related work at educational establishments; home health, if working with elderly, disabled, ill, or otherwise high-risk individuals; and nursing homes and community living facilities.
Covered employers must offer at least four days of paid sick leave and provide up to four paid sick-leave days to employees with flu-like symptoms and who are tested for COVID-19. If an employer already provides paid sick leave, this requirement is not on top of sick leave an employer already provides. It also does not cover wage replacement should an employee test positive and require quarantine resulting in lost work time and wages.
The HELP Rules provide that employees and employers should comply with FMLA procedures “[t]o the extent feasible” to pursue and provide paid sick leave under the HELP Rules, but the rules prohibit employers from terminating employees for failure or inability to provide FMLA-related documentation during an illness covered by the HELP Rules.
Employees who take paid sick leave pursuant to the HELP Rules are entitled to their regular rate of pay (as defined under the recent COMPS Order, 7 C.C.R. 1103-1 § 1.8) for the employer’s regularly worked hours. Failure to provide paid sick leave required under the HELP Rules constitutes a failure to provide wages under, for example, Colo. Rev. Stat. § 8-4-109, and can subject the employer to penalties and possibly attorney fee awards. Retaliation against an employee for taking paid sick leave under the HELP Rules is likewise prohibited.
Retaining Employer Discretion to Modify Workplace Policies
Last updated 3.15.2020
With any emergency or new policy revisions or changes, it is important to retain employer discretion to modify policies going forward. Most employers have a written acknowledgment at the end of their current handbook or policies that indicates the policies do not create a contract and that retains employer discretion to modify all such policies. This is critical to retain as employers are updating or modifying policies during the Coronavirus outbreak and related circumstances.
Employers may use or update their current acknowledgment form to address this. However, it is good practice to further update this form under the present circumstances where governmental emergency legislation, programs and guidelines are certain to continue. Employers should indicate that any interim or emergency policies are subject to change at any time based on company discretion and business needs and considerations, as well as based on any government-led issues, legislation, programs and guidance. Specifically, employers may want to suggest that any new employer benefits or policies provided specifically in response to the Coronavirus will be revised or offset by any potential government mandated or available plans and benefits.
I-9 Verification Policy and USCIS Signatures
Last updated 3.23.2020
DHS Announces Relaxed Standards for I-9 Verification and USCIS Signatures
On Friday, March 20, 2020, the Department of Homeland Security announced several new and unprecedented changes intended to assist employers during the coronavirus pandemic. The new rules permit copies of employer and attorney signatures rather than originals on certain immigration forms submitted to the USCIS such as the forms associated with the H-1B visa, and more flexible standards in completing the I-9 Employment Eligibility Verification Form. Specifically, for the next 60 days, employers may remotely view I-9 identity and work authorization documents such as a driver’s license or Social Security card remotely by video conference or by e-mail. This applies only to new hires working off-site and on-site employees whose documents cannot be verified in-person due to quarantine or lockdown requirements. Please see the suggested policy below.
Executive Order on Immigration
What is the Impact of President Trump's Temporary Immigration Suspension?
In light of the impact of COVID-19 on the U.S. labor market, on Monday President Trump tweeted “I will be issuing a temporary suspension of immigration into the United States.” Yesterday, the President signed an Executive Order with a much more limited scope that only temporarily suspends U.S. Embassies from issuing green cards (permanent residency) for immigrants applying outside the U.S for 60 days. Because 90% of green card applicants are in the U.S. and apply through the US Citizenship and Immigration Service rather than U.S. Embassies, most green card applicants will not be affected. Even those applicants outside the U.S. who might have been impacted by the Executive Order already faced closures of U.S. Embassies around the world due to COVID-19. The Executive Order, as written, will not impact existing green card holders, permanent residency applicants with pending applications at USCIS, immigrant workers with temporary work visas such as the H-1B, L-1, or TN visas. The Executive Order also exempts healthcare professionals, spouses and children of U.S. citizens, and immigrant investors. The Department of State and the Department of Homeland Security may issue policy memos in the next few days which will explain how the Executive Order will be implemented.
One of the more concerning aspects of the Executive Order is a request to the Department of Homeland Security, Department of State, and Department of Labor to “review nonimmigrant programs,” such as H-1B, TN, and L-1 visas, and recommend other measures to stimulate the U.S. economy and ensure the prioritization, hiring, and employment of United States workers. While no measures have been proposed yet, past recommendations have focused on elevating adjudication standards, raising immigration application fees, introducing requirements to conduct labor market tests to locate qualified U.S. workers before hiring foreign workers, or limiting the work authorization of dependent spouses. These federal agency recommendations will be provided to the President in 30 days, and may result in additional measures.
Who this Order affects:
From April 23, 2020 to June 22, 2020, immigratns currently outside the U.S. will be refused entry if they:
Who this Order does not affect:
Do not have either an immigrant visa that is valid as of the effective date above, OR
Do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date above, or issued on any date thereafter that permits them to travel to the United States and seek entry or admission.
What Happens Next:
Foreign nationals living and working in the United States who seek to become green-card holders
Additionally, the order will not affect the adjudication of PERMs, I-140s, or I-485s for these individuals
Foreign nationals currently in the United States on non-immigrant visas (such as H-1B, L-1, or TN visas)
Foreign nationals outside the U.S. seeking to enter the United States on non-immigrant visas (such as H-1B, L-1, or TN visas)
Agricultural H-2A guest workers
Lawful permanent residents or green card holders
Foreign nationals who seek to enter the United States on an immigrant visa for a position in the healthcare field (physician, nurse, medical research) or a related field that helps to fight COVID-19, and their spouse and unmarried children under 21 years old
Foreign nationals applying for the EB-5 Immigrant Investor Program
Foreign national who is the spouse of a United States citizen or who is under 21 years old and is the child of a United States citizen
Asylees, refugees, or Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment applicants
Foreign nationals in the United States Armed Forces and any spouse and children of a member of the United States Armed Forces
Foreign nationals entering for national interest purposes
The order indicates that no later than 50 days from April 23, 2020 (June 12, 2020) the Secretary of Homeland Security, Secretary of State, and Secretary of Labor will recommend whether the order will be continued or modified.
The order also states that within 30 days of April 23, 2020 (May 23, 2020) the Secretary of Homeland Security, Secretary of State, and Secretary of Labor will “review nonimmigrant programs” (such as H-1B, TN, and L-1 visas) and recommend other measures to stimulate the U.S. economy and ensure the prioritization, hiring, and employment of United States workers.
Health, Welfare, and Other Benefits
Last updated 4.20.2020
What's the Problem: COVID-19 has made it difficult to meet certain deadlines with respect to plan administration.
Answer:The IRS granted limited relief to filing deadlines, including certain Form 5500 relief, under IRS Notice 2020-23 on April 9, 2020. A Form 5500 that is required to be filed between April 1, 2020 and July 14, 2020 is now due July 15, 2020. The relief does not impact calendar year plans as the normal due date for filing Form 5500 (July 31st) falls outside of the delay period. This extension helps some non-calendar year plans and potentially plans with short plan years that caused the Form 5500 deadline to occur during that period.
Health Plan Coverage of COVID-19
Last updated 4.1.2020
What's the Problem: One potential barrier to getting people tested is the expense of medical treatment. For participants in employer-sponsored health plans, they may be reluctant to incur copay or deductible expenses.
Answer: The Family First Coronavirus Response Act now requires (as of the date of the enactment of the Act, March 18, 2020) all group health plans (fully insured and self-insured) to provide COVID-19 testing to plan participants and their covered beneficiaries without cost sharing (i.e., co-pays, deductibles and coinsurance) and without imposing prior authorization requirements or other medical management requirements.The Families First Coronavirus Response Act is available
Covered services include facility charges (including office visit, urgent care visit, emergency room visit) and the cost of all services (provided in person or by telemedicine) and all items used in administering the COVID-19 test as well as the costs associated with evaluating whether a COVID-19 test is required. The coverage requirements are limited in duration to the period of a national health emergency as declared by the Director of Health and Human Services. Failure to provide these benefits would constitute a violation of Part 7 of the Employee Retirement Income Security Act and other similar benefits laws.
The CARES Act (signed on March 27, 2020) has modified and expanded on a permanent basis required coverage for COVID-19 testing without cost sharing to include COVID-19 tests that are in the process of being approved by the federal government, tests that have been approved by certain state labs, and other tests the Secretary of the Health and Human Services approves.
In addition, group health plans (fully insured and self-insured) are also required to cover COVID-19 immunizations and similar mitigation services as preventive health services without cost sharing. These services must be made available under the plan within 15 days of the date the immunization is given an “A” or “B” rating by the United States Preventive Services Task Force or is recommended by the CDC as an appropriate immunization for the person considered.
Last updated 3.23.2020
What's the Problem: Can a health plan waive copay or deductible amounts for Coronavirus screening tests for individuals enrolled in a high deductible health plan or will these payments cause the plan to cease to qualify as a high deductible health plan and thereby make the enrollees ineligible to be making contributions to a health savings account?
Answer: Yes. Even before the FFCRA, IRS Notice 2020-15 expressly confirms that an HDHP may eliminate or reduce the deductible for benefits received or items purchased associated with Coronavirus testing or treatment with no effect on the plan’s status as a high deductible health plan under Internal Revenue Code Section 223(c)(A). More generally, the HSA and HDHP rules allow for enrollees to receive “preventative care” services before reaching the deductible. The IRS notice that defines the scope of preventative care in this context is Notice 2004-23, which creates a safe harbor for preventative care screening services that are listed on the appendix to the notice. One of the screening services on the safe harbor list is “infectious diseases.” Thus, an HDHP can cover screening for infectious disease, such as Coronavirus testing, as a preventative service without cost-sharing. IRS Notice 2020-15 goes further than this, however, and allows lower (or no) deductibles to apply to benefits received or items purchased that are associated with treatment of COVID-19 and not merely associated with screening for the virus.
Telemedicine & HSAs
Last updated 4.1.2020
What’s the Problem: To alleviate the risk that people would be exposed to COVID-19 during unrelated medical visits to medical facilities, some telemedicine providers are encouraging employers to offer telemedicine at no copay or deductible for any medical condition during the pandemic. But that is broader than Notice 2020-15 would allow. Does providing telemedicine with no cost sharing cause any problem?
Answer: The CARES Act addresses this issue by temporarily amending the Tax Code to permit group health plans to provide any service with zero cost sharing through telemedicine (including services completely unrelated to COVID-19) without jeopardizing participant HSA eligibility. This special exception to the general HSA rules will remain in effect until the first plan year starting in 2022.
Last updated 3.29.2020
Mid-Year Changes to Cafeteria Plan Elections
Employees whose daycare and commuting circumstances have changed due to the COVID-19 outbreak may want to make mid-year changes to various benefit plans.
Dependent Care Flexible Spending Accounts
FSA elections for pre-tax accounts administered for commuter benefits—Qualified Parking and/or Qualified Transportation—and/or dependent care expenses may be eligible for mid-year change.
Question: My child’s daycare center closed due to COVID-19, and I am now working from home. Can I decrease my dependent care FSA election amount as I do not need daycare services right now?
Answer: Yes, if your expenses have decreased because your child’s daycare center has closed, you can temporarily change or cancel your deferral.
Question: My child’s school is closed due to COVID-19. I now need to pay someone to watch my child in my home. Can I increase my dependent care FSA election?
Answer: Yes, you may increase your election if your child being unable to attend school results in an increase in daycare expenses.
Commuter FSA: You are always able to make changes to your Qualified Parking and/or Qualified Transportation election amount. IRS regulations permit you to increase or decrease your monthly election amount at any time, if you find that the amount you are contributing exceeds your spending. This includes for the time spent working from home during government-issued stay-at-home orders.
Mid-Year Changes to Healthcare FSA and other Benefit Plans
At this time, the IRS still requires a qualified change in status (e.g., birth, marriage, divorce, job change impacting coverage) before you can change your deferral election to a healthcare FSA. Your plan will have a deadline, often a 30-day window, to make qualified changes, and you must provide evidence of the reason for the change when you make the request. The same mid-year status change rules generally apply to other benefit elections, such as coverage under a medical plan.
Employers should check their cafeteria plan document to confirm that midyear election changes are available under plan terms. If the cafeteria plan does not permit midyear changes, employers can consider amending the plan to provide eligible employees the opportunity to make changes to account for their changed circumstances. Once the employer confirms that these changes are permissible, the employer can communicate the employees’ options.