What is the Families First Coronavirus Response Act?
DOL Website: www.dol.gov
• New Regulations Came Out on April 1
• Changes to prior guidance
• Answers on shelter in-place questions are covered
Required Postings
• Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act
• Post in conspicuous place: “An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website”
• Don’t have to post in other languages – Best practice to do so
• Poster FAQ available www.dol.gov/agencies/whd/pandemic
HR Checklist
- Review leave policies, including use of accrued time while on leave
- Rely on resources on proper response to COVID-19 related concerns such as the DOL, IRS, CDC, EEOC, DIR, and EDD – you don’t have to the expert on the virus
- Display all required posters in a conspicuous place
- When leaves are necessary – prepare a return to work policy for employees, if applicable
- Retain payroll taxes equal to the amount of qualifying sick and child care leaves, rather than deposit with the IRS
- Post information on proper hygiene and pandemic etiquette Have an open door policy so employees can discuss concerns
- Visit employers.org/HR Answers/Additional Resources for fact sheets, posters, sample policies, government guidance
EPSL Summary
• Employers with fewer than 500 employees must provide employees with up to 80 hours of EPSL benefits to be used for COVID-19 related absences where an employee is unable to work or telework
• Pro-rated for part time employees
• Lump sum of hours given to employees, available to use right away
• EPSL is in addition to any other leave
How Do I Count to 499?
Private employers with “fewer than 500 employees” (1-499) in the U.S., D.C. and territories/possessions
• Public agencies
• 1-499 at the time leave is taken- snapshot approach
• Combine entities? Ask counsel
Count:
- Part-time, full-time
- Employees on leave
- Temporary employees
- Joint employees (regardless of whose payroll) Don’t Count:
- Laid off/furloughed employees
- Independent contractors
Who is Eligible for EPSL
• Employees are eligible for Emergency PSL regardless of length of employment or hours worked,
• In other words, day one of employment
Small Business Exemption
Small business (less than 50) exemption from EPSL/ EFMLA requirement to provide leave due to school closings or child care unavailability if it would jeopardize the viability of the business as an ongoing concern: Exempt only if the:
- Employer employs fewer than 50 employees;
- Leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and an authorized officer of the business has determined and documented that at least one of the three business conditions exists.
- (See DOL Qs #58-59)
Amount of EPSL
• Full-time employees: Up to 80 hours of EPSL
• Part-time employees: Hours up to what normally scheduled to work over 2-week period
• If the part-time employee’s schedule varies different calculation depending on how long worked for you. – See Sec. 826.21 of the new regs
• 80 hours total even if you change employers!
Qualifying Reasons and Pay
• Must be unable to work or telework for six covered reasons
• Rate of pay and maximum amount paid varies based on the reason for the leave
Quarantine = Shelter-In-Place
• A federal, state, or local quarantine or isolation order includes shelter-in-place or stay-at-home orders, that cause an employee to be unable to work (or telework) even though the employer has work that you could perform but for the order
• An employee may not take EPSL leave for this qualifying reason if your employer does not have work for you as a result of a shelter-inplace or a stay-at-home order
• If the employer is required to furlough employees or shut down as a result of the order, the affected employees are not entitled to take EPSL
Can I Get Leave If My Employer …
• Closed worksite before 4.1? No
• Closes worksite on or after 4.1 but before I go on leave? No
• Closes worksite while I am on EPSL or EFMLA? – Must pay for any EPSL or EFMLA used before closure. – No leave entitlement from date of closure on
• Closes worksite but says they will reopen in future? No. (Once reopen, Yes)
• Is open but furloughs me (no work)? No
• Is open but reduces my hours? – No for hours you are no longer scheduled to work – Yes for hours you are scheduled
General Rule: No Leave If Not Scheduled to Work
FFCRA “Regular Rate of Pay”
• Average of employee’s ”regular rate” over a period of up to 6 months prior to the date on which leave taken
• Employee worked less than 6 months or variable? Several different calculations. Section 826.25
• Commissions, tips, or piece rates wages will be incorporated into the above calculation.
• OR can compute amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period
If regular rate is lower than state or local min. wage, must pay minimum wage (DOL Qs. #7 and 8)
Additional Rules
• Entire amount of leave is available for immediate use for any of the qualifying reasons
• Doesn’t carry over (expires 12/31/20)
• No pay out when someone leaves employment
• Cannot require employee to find a replacement to cover scheduled hours
• Can’t deny just because you already gave other paid leave – even if more generous
• Can’t get UI during EPSL
EPSL Intermittent Leave
EPSL -still coming to worksite:
• No, if for Reasons 1-4 or 6 (stay away from work)
• Yes, if for Reason 5 (no school/child care) and both employer and employee agree
EPSL – teleworking:
• Yes for all reasons (1-6), employee can’t telework and both employer and employee agree
• Any increment of time:
– Example: if you agree on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking
EPSL Interaction with Other Leave
• Employee can choose to first use this EPSL before any other paid leave (including California PSL)
• Cannot require an employee to use other provided paid leave (e.g. vacation) before EPSL
• Capped at 80 hours for any reason and any employer
Example: Can’t take 80 hours for your own selfquarantine (#2) and then another 80 hours of EPSL to care for a family member (#4)
• Can take EPSL and EFMLA for total of 12 weeks
• Employer and employee must both agree to use other paid leave to supplement the EPSL amount
Employee Notice Requirement
• After the 1st workday (or portion thereof) that an employee receives EPSL, you may require the employee to follow “reasonable notice procedures” to continue receiving EPSL
• Don’t deny leave because of lack of notice: give employee opportunity to fix; seek counsel
EFMLA Summary
• Significant expansion of FMLA
• Temporary basis: April 1 through December 31, 2020
• Employee threshold for FMLA coverage changes from only covering employers with 50 or more employees to EFMLA covering employers with fewer than 500 employees (1-499)
• Up to 12 weeks of EFMLA leave for “qualifying need” – Paid and unpaid components
• Not all FMLA requirements would apply to employers who were never subject to FMLA before only the Emergency FMLA requirements apply
Covered EFMLA Employer
• Private employers with “fewer than 500 employees” and all public agencies • Count all employees if in the U.S., D.C., or any U.S. territory or possession
• A corporation is a single employer, rather than its separate establishments or divisions
• Separate entities will be one employer if they meet either the joint employer or integrated employer tests (as set forth in FMLA regulations)
Covered EFMLA Employer
• Note: no minimum number of calendar weeks that the employer must be at this threshold – unlike FMLA
• Same Small Business Exception for leave due to school/child care closing applies
• Same health care provider exception
Eligible Employee
• Any employee who has been employed for at least 30 calendar days – Been on payroll for 30 calendar days immediately prior to day leave would begin – Ex: Requests EFMLA on 4/10/2020 must have been your employee since 3/11/2020
• Note: this is broader than normal eligibility Employee not eligible for other FMLA provisions could be eligible for EFMLA
Qualified Need for the Leave Related to Public Health Emergency
Up to 12 weeks of job protected leave if: the employee is unable to work or telework due to the need to care for a child under 18 if the child’s school or child care is closed or child care provider is unavailable due to a COVID-19 related public health emergency
• Child = own son or daughter
• Child care provider is someone who is paid to provide child care on a regular basis
• And individuals who provide child care at no cost on a regular basis (grandparents, aunts, neighbors)
• School means an elementary or secondary school
Duration of Leave
• Full-time employee is eligible for up to 12 weeks of EFMLA leave at 40 hours a week
• Total 12 weeks combined EPSL/EFMLA
• Part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work - over that period
• If varying schedules, use same method as for Emergency Paid Sick Leave
Pay During EFMLA
First 2 Weeks of EFMLA
• Unpaid (may use up to 80 hours EPSL to receive pay, If no EPSL left elect to use other employer provided leave)
After 2 Weeks of EFMLA
• Paid at rate of 2/3 of employee’s regular rate of pay
• Use the number of hours the employee would normally be scheduled to work for each day of leave that an employee takes up to 12 weeks
• If varying schedules, use same method as for EPSL
Cap on Pay
• Not to exceed $200/day and $10,000 aggregate over 12 weeks
• Can’t get UI while getting EFMLA
What’s new in 2020 HR compliance?
Employers who are currently rushing to meet the January 1, 2020 deadline can take a breather. The California legislature recognized that requiring employers who had their last training in 2018 to provide training In 2019 in order to meet the January 1, 2020 deadline would force employers to provide the training twice in a two year period. SB778 addresses this issue by extending the deadline to provide the training to January 1, 2021. Employers who have already provided the training in 2019 are not required to provide the training refresher until two years after the date of the training.
S.B. 1343 requires that all employers of 5 or more employees provide 1 hour of sexual harassment and abusive conduct prevention training to non-managerial employees and 2 hours of sexual harassment and abusive conduct prevention training to managerial employees once every two years. Existing law requires the trainings to include harassment based on gender identity, gender expression, and sexual orientation and to include practical examples of such harassment and to be provided by trainers or educators with knowledge and expertise in those areas. The bill also requires the Department to produce and post both training courses to its website, which employers may utilize instead of hiring a trainer.
There is no requirement that the 5 employees or contractors work at the same location or that all work or reside in California.
Under the DFEH’s regulations, the definition of “employee” includes full-time, part-time, and temporary employees.
By what date must employees be trained?
Both managerial and non-managerial employees must receive training by January 1, 2021. After January 1, 2021, employees must be retrained once every two years. That means that all employees statewide must be retrained by January 1, 2023.
What if my employees were trained between January 1 and December 31, 2018?
The law requires that employees be trained during calendar year 2020. Employees who were trained in 2018 or before will need to be retrained. Read More...