Late last week we learned the Department of Labor, specifically the Wage and Hour Division, updated the Questions and Answers on the Families First Coronavirus Response Act. These answers provided clarity in some areas which were unclear and further clarified some other areas that significantly impact companies with under 500 people. It also left a few things unanswered.
Small Business Exemption status - Question 4
Question: If providing childcare-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?
Answer: To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.
HRx Thoughts - Hold tight, more information should be available in the coming days. We are keeping an eye on this one!
Documentation for the Tax Credit - Question 15
Question: What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?
Answer: You should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.
Answer - Child Care: You may also require your employee to provide you with any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or daycare website, published in a newspaper, or sent in an email from an employee or official of the school, place of care, or child care provider.
HRx Thoughts - When you are working through FFCRA qualifications for a COVID-19 related need for paid sick leave or expanding family and medical leave, ensure your certification process is valid and document thoroughly.
What is considered unable to work/telework for COVID related reasons - Question 18
Question: What does it mean to be unable to work, including telework, for COVID-19 related reasons?
Answer: You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework.
Answer - Flexible Schedule: If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work, and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.
HRx Thoughts - In order to qualify for unable to work status under COVID-19 specifications, your normal work schedule and working dynamics (hours of work) could not have been adjusted by the employer and remain intact.
Intermittent Paid Sick Leave and EFMLA - Questions 20 - 22
Question: May I take my paid sick leave or expanded family and medical leave intermittently while teleworking?
Answer: Yes, if your employer allows it and if you are unable to telework your normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act.
HRx Thoughts - This is great to be able to allow flexibility, as some people may be able to stagger their personal schedules to accommodate for the changes. Some further details should be considered if you are planning to work onsite (if permitted), rather than telework.
Furloughs and Reduction of Hours - review for COVID-19 qualifying leave - Questions 23 - 28
Questions: Questions specific to closing the worksite or reducing hours, are you eligible for EPSL or EFMLA?
Answer: Generally, no, a reduction or slowdown in business does not seem to be a qualifying reason for either of these paid sick time policies.
HRx Thoughts - In the Questions and Answers, these question sets are setting up specific scenarios you can work through to help determine whether FFCRA leave would apply. However, in these circumstances, unemployment could also be an option. WHD directs people to this site for further information on that resource: career one-stop link.
There is still some confusion on this, and we are still waiting to hear about further documentation templates to satisfy the IRS requirements, as well as more on the small business exemption. We will work to keep you updated on the things we think you should know now. Stay tuned as we will work to cover information on the new Coronavirus Aid, Relief and Economic Security Act (CARES) in the coming days. HRx Services, alongside Elevate Virtual, are hosting a series of events. Click here to access all of the available programs.