I have so much on which to catch you up from what went down on Friday — other than the few ounces of brown liquor that lovingly passed my tonsils.
It was a long week, folks. Amirite?
The U.S. Department of Labor’s Guidance(ish)
On Friday, the DOL added two new resources to its slowly growing COVID-19 library:
- Families First Coronavirus Response Act: Employee Paid Leave Rights
- Families First Coronavirus Response Act: Employer Paid Leave Requirements
Rather than fill in any gaps in the law, both documents basically restate the FFCRA, albeit in less legalese than the statute itself.
Still, I noticed a few items in the guidance that didn’t quite track the FFCRA. For example, the DOL states that an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because “the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.” (my emphasis). The statute specifically refers to a son or daughter, not just any child.
So, let’s chalk that up to DOL shorthand.
The guidance does confirm that, when paid sick leave and emergency FMLA overlap as in the childcare situation, they run concurrently (not consecutively):
All employees of covered employers are eligible for two weeks of paid sick time for specified reasons related to COVID-19. Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19
A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
Also, the DOL revealed some new information about how it will enforce the law. That is, the first 30 days will be a bit of a trial period for employers, as long as they have good intentions:
The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act. For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.
So, when might we see actual regulations from the DOL? In footnote one of the employee guidance, the DOL indicated that it expects to issue FFCRA regulations in April 2020.
Here are three questions that I’d like to see answered when the DOL issues those regs:
- Can employees using emergency FMLA take intermittent leave or work on a or reduced-leave schedule?
- If a state or locality orders individuals to shelter in place, does that mean that an “employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19” and therefore eligible for paid sick leave?
- What the heck does “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” mean?
Eric, when can we get those tax credits? The IRS begins to explain.
Also on Friday, the Internal Revenue Service offered this sneak preview into the tax credit plan for coronavirus-related paid leave for workers and tax credits for small and midsize businesses. In the next few paragraphs, I’m going to highlight the latter from what the IRS refers to as its “key takeaways”:
Employers receive 100% reimbursement for paid leave pursuant to the Act.
- Health insurance costs are also included in the credit.
- Employers face no payroll tax liability.
- Self-employed individuals receive an equivalent credit.
Reimbursement will be quick and easy to obtain.
- An immediate dollar-for-dollar tax offset against payroll taxes will be provided
- Where a refund is owed, the IRS will send the refund as quickly as possible.
Small Business Protection
Employers with fewer than 50 employees are eligible for an exemption from the requirements to provide leave to care for a child whose school is closed, or child care is unavailable in cases where the viability of the business is threatened.
- Requirements subject to 30-day non-enforcement period for good faith compliance efforts.
The IRS is also supporting businesses with liquidity issues. That is, companies can take immediate advantage of paid leave credits by retaining and accessing funds that they would otherwise pay to the IRS in payroll taxes. Employers can even get an advance from the IRS if those amounts are not sufficient to cover the cost of paid leave by seeking an expedited advance from the IRS by submitting a streamlined claim form. The IRS expects to release that form this week.
You can get the full IRS scoop here.
Did you miss Friday’s live chat with me about the FFCRA?
Shame on you!
Actually, no worries. I’ve got you covered with this recording from our Facebook Live sesh. I also set up a “The Employer Handbook” YouTube channel where I uploaded Friday’s chat video (here). Feel free to subscribe to the YouTube channel while you’re there.
For the folks that attended (or tried to participate) on Zoom, I am sorry. What a sh*tshow! The room was filled, the recording ended early, and someone unmuted her line during the live chat. Going forward, hello YouTube; goodbye Zoom! Problem solved.
What’s up for tomorrow?
I’d like to focus on some of the state-level shelter-in-place orders and what they mean for local businesses. Also, I’m going to address the question of whether a fearful employee who is fired after objecting to coming to work may have a viable whistleblower claim.