COVID-19 Legislation FAQs
If my company has less than 50 employees, do we disregard everything else because we are exempt?
Our guidance suggests that only a small portion of <50 businesses will qualify for an exemption, but we are waiting for additional information from the government about small business exemptions. You may qualify for an emergency loan from the Small Business Administration, depending on which state(s) you operate in. See Coronavirus (COVID-19): Small Business Guidance & Loan Resources
Can employees "stack" the Emergency FMLA and Emergency Paid Sick Leave? Meaning, be out for 2 weeks paid at 100% and then another 12 weeks for childcare?
Yes, they can use the sick leave as the first 2 weeks of the EFMLA and 10 more weeks as just EFMLA.
Are you allowed to force employees to deplete PTO first during these two weeks?
Employees can choose to use their accumulated sick or PTO during those first two weeks, but you cannot force them to do so. They can also use the Emergency Paid Sick Leave for those two weeks as well.
What happens if employees have already used their FMLA? Do they get an additional 12 weeks?
Yes, they are eligible for an additional 12 weeks of Emergency FMLA - which is to care for a child who is home due to a school or daycare closure or a daycare provider being unavailable due to a COVID-19 reason.
If the employees are laid off today, but still laid off after April 1st, would they start getting the paid time off starting April 1st?
Employees that are laid off (terminated) are not eligible for Emergency Sick Pay nor Emergency FMLA.
For the Emergency Paid Sick Leave Act, if we already offer PTO to our team, do we have to offer the 80 hours of Emergency Paid Sick Leave on top of the PTO we already offer?
Yes, the paid leave in the bill is on top of any existing accrued leave and in addition to any policies you already have in place. You may ask for certification, as we always recommend as much documentation as possible, but as of right now the government hasn't posted any official guidance on this. The bill goes into effect on April 1, 2020. You will want to set up an additional earnings code to track wages paid as Emergency Sick Leave so that you can apply for the tax credit. We can help with that. Send a request to customerservice@dominionpayroll.com.
I have greater than 500 employees. If I offer the Emergency Paid Sick Leave Act and Emergency FMLA, am I eligible for the tax credit?
You do not meet the employee count threshold for these emergency leaves as dictated by the Families First Act. The Emergency Paid Sick and Emergency FMLA leave only are available to employees at companies with 500 or fewer employees, and thus, you do not qualify for the tax credit.
Being a company with 500+ employees (exempt from paid leave), are we still required to give unpaid FMLA to workers that stay home to care for children whose schools have closed? If so, does the length of employment qualification reduce to 30 days?
As of now, the original FMLA still applies to companies with 500+ employees, along with the requirement that employees are only eligible if they have worked at the company for at least 12 months. https://www.dol.gov/agencies/whd/fmla/pandemic
Can you separate workers who appear sick?
Yes, but ideally you would send them home and encourage them to seek medical attention. You may not accuse anyone of having COVID-19 outright, but you are permitted to send visibly sick employees’ home.
When should workers be allowed to return to work?
If the employee has had the flu or any other illness that includes a fever as a symptom, he or she should seek medical attention. If he or she contracts COVID-19, you must ask for a doctor's note before they return to work. If the illness is the seasonal flu or other illness, it's still a good idea to ask for a doctor's note. At a minimum, ask them to wait 24 hours until after the fever breaks before returning to work.
What about employees who have traveled to hot spots? Can you require them to stay home? Do you have to pay them?
Yes, you can require them to stay home and self-quarantine for 14 days before returning to work. If you have fewer than 500 employees, that employee is eligible for up to two weeks (80 hours if full-time or the # of hours they would have worked over those two weeks for a part-time employee) of paid sick leave, per the new law.
What is the difference between a furlough and a layoff?
A furlough is a temporary layoff or reduction in force with the goal of reinstating employees as business needs dictate. A layoff is more permanent in nature and involves terminating the employee.
Where can we find the postings of the new legislation that we have to display within 7 days?
See poster from DOL here. You will need to have it posted by 4/8/2020.
How much of a payroll tax credit would I receive for participating in the Emergency Paid Sick Leave Act?
The tax credit at this point is for wages paid as part of the Emergency Paid Sick Leave Act and is applied to the ER portion of SS only. For example if you paid $50,000 in wages for the quarter, your tax liability for SS ER portion would be $3100. If you paid $2000 in emergency sick leave, you would only be liable to pay $1100 in ER SS. If you paid $4000 in emergency sick leave, you would owe $0 in ER SS and would be due a refund of $900.
What do I need to do to get the earnings codes set up in iSolved?
Dominion Payroll can help set this up for you! Please send a request to customerservice@dominionpayroll.com.
Does the new Sick leave and FMLA apply to laid-off and furlough employees?
If your employees have not been terminated and are simply inactive (furloughed or temporarily laid off with the intent to reactivate them once business needs dictate), they are eligible for benefits under the Families First Act. Full-time employees are eligible for 80 hours of paid sick leave (consecutive). Part-time employees are eligible for paid sick leave for the number of hours they would normally work during a two-week period. However, they would not be eligible for the Emergency FMLA benefits.
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What unemployment claim changes do employers need to know regarding COVID-19?
States have waived traditional conditions like waiting periods and having to actively looks for new employment. We also expect that employers' unemployment tax rates will not be adversely affected by COVID-19 related unemployment claims. Your employees may file for unemployment if they have been terminated or furloughed (temporarily laid off), and you may opt to continue their benefits in the latter case.
Does the Act start 4/1/2020 and go to the end of year? Or can the employer start the emergency paid sick leave act before 4/1?
As far as we understand, emergency paid sick leave can begin any time on or after April 1, 2020, as long as it's treated as leave in addition to any existing sick leave an employee already is entitled to under your existing policies. Make sure you track the leave separately so you can apply for tax credits down the line.
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