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Families First Coronavirus Response ActFrequently Asked Questions (FAQ) in Response to the Webinar from April 9, 20201.) Implementation Date for Emergency Family and Medical Leave.Can you implement prior to April 1, 2020?No. The Act became effective on April 1, 2020 and operational on April 2, 2020. Any leave provided prior to that date cannot be counted towards an employee’s entitlement to emergency leave under the FFCRA. For towns who quickly shared the information about paid 80 hours due to COVID-19 prior to the guidance was released and prior to 4/1, is the town required to pay the employee without affecting their PTO due to our “misinformation?” Can the employer require employees to use their own PTO for paid leave prior to 4/2?Any leave provided prior to 4/2 cannot count towards emergency leave under the FFCRA. To the extent employers told employees that they were entitled to take additional paid leave prior to 4/2, and employees took leave in reliance on that, employers cannot retroactively make that leave unpaid. Not paying employees wages promised could be a violation of the NC Wage & Hour Act, and could subject the employer to liability. 2.) Interworking of the Family and Medical Leave Act (FMLA) and Emergency Family and Medical Leave (eFMLA)Is an employee eligible for Family and Medical Leave (FMLA) if the employee is sick with COVID-19 and only eligible Emergency Family Medical Leave (eFMLA) for childcare reasons related to COVID-19?Generally, yes. While eFMLA applies only to issues of childcare related to COVID-19, an employee may still be eligible for regular FMLA if they meet the definition of a serious health condition. The provisions of the FFCRA related to eFMLA provide a new qualifying reason to take FMLA, but do not extend the amount of FMLA leave available. Thus, the employee will only receive a total of 12 weeks whether the leave is taken under regular FMLA or eFMLA. However, because eFMLA is paid leave, and regular FMLA is unpaid, the employee will only receive pay for childcare issues due to COVID-19 related reasons, which is covered under eFMLA.If the municipality has less than 50 employee, then all employees are eligible for Emergency Family and Medical Leave (eFMLA) but NOT for Family Medical Leave?Yes. Under the FMLA, an employer must employ 50 or more employees within a 75-mile radius and the employee must be employed for 12 month and have worked 1,250 hours. Many municipalities in NC do not meet these criteria, and therefore are not required to provide regular FMLA. However, the FFCRA revises the employer threshold for purposes of eFMLA from “50 or more employees” to “fewer than 500 employees.” As such, all municipalities (unless you have more than 500 employees) are required to provide eFMLA to any “eligible employee” (defined as an employee who has been employed for at least 30 days) who requests eFMLA because they are unable to work (or telework) due to leave to care for the son or daughter under 18 years of age if the school or place of care has been closed, or the childcare provider of such son or daughter is unavailable, due to a public health emergency. In addition, the Department of Labor has provided guidance that adult son or daughter who is 18 years of age or older, who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.3.) Providing childcare and qualifying for Emergency Paid Sick Leave (ePSL) and Emergency Family and Medical Leave (eFMLA)Is an employee entitled to Emergency Paid Sick Leave (ePSL) and/or Emergency Family and Medical Leave (eFMLA) if the town is providing childcare for employees?Neither the FFCRA or the DOL guidance offer a direct answer to this question. As set forth below, it will likely depend on what constitutes “suitable” child-care, and who gets to make that determination. In the absence of specific guidance, we recommend erring on the side of allowing the parent to determine whether child-care provided by the employer is “suitable.” The Department of Labor provides the following guidance:Who is my “child care provider”?A “child care provider” is someone who cares for your child. This includes individuals paid to provide child care, like nannies, au pairs, and babysitters. It also includes individuals who provide child care at no cost and without a license on a regular basis, for example, grandparents, aunts, uncles, or neighbors. Emphasis added.If your employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, they must submit the following according to DOL guidance:The name of the child being cared for;The name of the school, place of care, or child care provider that has closed or become unavailable; andA statement from the employee that no other suitable person is available to care for the child.While some towns have the ability to offer childcare for children of employees, if the employee chooses not enroll their child(ren) in the program due to concerns over the suitability of the person caring for the child and the employee is not excluded from the Act, then the employee is eligible for Emergency Paid Sick Leave (ePSL) and Emergency Family and Medical Leave (eFMLA). On the other hand, if the person caring for the child is suitable and the employee is not excluded from the Act, then the employee eligible for Emergency Paid Sick Leave (ePSL) and Emergency Family and Medical Leave (eFMLA). It is unclear under the FFCRA or the DOL guidance who makes the determination as to whether a particular child-care provider is “suitable.” However, the examples of a “suitable” provider in the DOL guidance are co-parent, co-guardian, or the usual child care provider. This would suggest that the definition of a “suitable” provider may not be broad enough to encompass child-care offered by the employer. Does it change anything if the town provides childcare on a regular basis as we run after school care and summer camps?See above. While it is unclear what would constitute a “suitable” person to provide child-care, best practice would likely be to allow the parent to determine the suitability of the provider. If your Parks and Recreation Department does provide after school care and summer day care camps, would employer provided childcare be "regular" day care?See above. While it is unclear what would constitute a “suitable” person to provide child-care, best practice would likely be to allow the parent to determine the suitability of the provider. Does a grandparent meet the definition of a childcare provider?According to DOL guidance, yes. A “child care provider” is someone who cares for your child. This includes individuals paid to provide child care, like nannies, au pairs, and babysitters. It also includes individuals who provide child care at no cost and without a license on a regular basis, for example, grandparents, aunts, uncles, or neighbors. Does Emergency Paid Sick Leave (ePSL) and/or Emergency Family and Medical Leave (eFMLA) still apply after the regular school year lets out?Yes. Schools being closed is only one qualifying ground for an employee to take emergency leave for child-care purposes. During the summer, employees presumably have regular child-care arrangements made, such as day camps, babysitters, or relatives. To the extent the employee’s regular child-care provider or place of care is unavailable due to COVID-19 precautions, they are eligible for emergency leave. Could an employee make a request for the organization to pay for or reimburse childcare cost while teleworking? The Act does not require employers to pay for or reimburse for childcare.An employee states he/she needs to stay home to babysit, but the spouse is home full-time?While the spouse may be home, he/she may be unable to child for the child due to sickness, telework commitments, etc. The employer should err on the side of caution and not assume that the other spouse is available for child-care. Anyone employed for at least 30 days, both full-time and part-time and not excluded from the Act as adopted by the governing body may qualify for eFMLA. To qualify for eFMLA the employee is unable to work (or telework) due to leave to care for the son or daughter under 18 years of age if the school or place of care has been closed, or the childcare provider of such son or daughter is unavailable, due to a public health emergency. In addition, adult son or daughter who is 18 years of age or older, who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.Under Emergency Paid Sick Leave (ePSL), I thought childcare could be paid or unpaid but for Emergency Family and Medical Leave (eFMLA) childcare must be paid?The definition of “childcare provider” is the same for both eFMLA and emergency sick leave, and should be treated the same under both provisions of the FFCRA. While the Act itself defined “child-care provider” as someone who receives compensation, subsequent guidance from the DOL has indicated that the provider need not be compensated if they are family member or friend who regularly cares for the employee’s child. Under Emergency Paid Sick Leave (ePSL) and Emergency Family and Medical Leave (eFMLA) the employee is paid for the leave. Under the Act taking leave for childcare issues related to COVID-19 are paid two-thirds the regular rate for Emergency Paid Sick Leave (ePSL) and paid at no less than two-thirds for Emergency Family and Medical Leave (eFMLA).If the employee qualifies for both leaves – Emergency Paid Sick Leave (ePSL) and Emergency Family and Medical Leave (eFMLA) – can the Emergency Paid Sick Leave (ePSL) be applied to the first 10 unpaid days of Emergency Family and Medical Leave (eFML)? Yes. The employee can use Emergency Paid Sick Leave (ePSL) to during the first 10 days of Emergency Family and Medical Leave (eFMLA). In fact, this appears to be the intent of the FFCRA. The employee would be paid for the first 10 days under Emergency Paid Sick Leave (ePSL), then eligible for 10 paid weeks of Emergency Family and Medical Leave (eFMLA) paid at no less than 2/3 rate.Can you clarify the difference in reason for Emergency Family and Medical Leave (eFMLA) and Reason #5 under in Emergency Paid Sick Leave (ePSL)? For general purposes the reasons are the same, and were written to complement each other, such that the employee would be paid for the first 10 days under Emergency Paid Sick Leave (ePSL), then eligible for 10 paid weeks of Emergency Family and Medical Leave (eFMLA) paid at no less than 2/3 rate (assuming they have not already used any FMLA time for other reasons).Reason for Emergency Family and Medical Leave (eFMLA): An employee is unable to work (or telework) due to leave to care for the son or daughter under 18 years of age if the school or place of care has been closed, or the childcare provider of such son or daughter is unavailable, due to a public health emergency. In addition, the Department of Labor has provided guidance that an adult son or daughter who is 18 years of age or older, who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.Reason #5 under Emergency Paid Sick Leave (ePSL): 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 child care provider of such son or daughter is unavailable, due to COVID–19 precautions. In addition, the Department of Labor has provided guidance that an adult son or daughter who is 18 years of age or older, who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.4.) Intermittent Leave Emergency Paid Sick Leave (ePSL) and Emergency Family and Medical Leave (eFMLA)Do you need governing board approval to provide intermittent leave?No. Providing intermittent leave for an employee is an individual employment decision, not an overall policy decision. As such, this decision does not need to be made by the governing board. Basically, if an employee is taking leave due to childcare reasons related to COVID-19 then the leave under Emergency Family and Medical Leave (eFMLA) and/or Emergency Paid Sick Leave (eSPL) it can be taken intermittently? It can also be taken intermittently for Emergency Paid Sick Leave (eSPL) if the employee is teleworking?Emergency Family and Medical Leave (eFMLA)Employers may allow intermittent leave for Emergency Family and Medical Leave (eFMLA) upon agreement of employer and employee. Emergency Paid Sick Leave (ePSL)Employer may allow intermittent Paid Sick Leave (ePSL) to employees who are working remotely. If an employee cannot work remotely, they must take sick in full day increments, with one exception: even if an employee cannot work remotely, the employee can take intermittent leave to care for son or daughter (18 or younger) if school or day care is closed, or if childcare provider is unavailable due to Covid-19 precautions. In addition, this applies to an adult son or daughter who is 18 years of age or older, who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.Intermittent leave approval is generally done at the administrative level. What happens if an employee takes leave for 80 hours due to being sick with COVID-19, is symptom free or tests negative, then the employee becomes infected again with COVID-19 and all Emergency Paid Sick Leave (ePSL) has been exhausted?The Act does not address what happens if an employee is infected twice during two different time periods, but the DOL guidance states that full time employees are entitled to up to 80 hours of Paid Sick Leave. As such, it does not appear that the Act would provide any additional emergency sick leave once the 80 hours are exhausted. Certainly, if the employee is sick, then the employer can send the employee home and the employee can use available accruals or go into unpaid status. The employee may qualify for (regular, not emergency) Family and Medical Leave (FMLA) if the sickness meets the definition of serious health condition. The employer may also choose to provide additional sick leave beyond that required by the FFCRA. 5.) Emergency Family and Medical Leave (eFMLA)If an employer has under 50 employees, it must provide Emergency Family Medical Leave (eFMLA) for childcare issues? Yes. Under the FMLA, an employer must employ 50 or more employees within a 75-mile radius and the employee must be employed for 12 month and have worked 1,250 hours. Many municipalities in NC do not meet this criteria, and are therefore are not required to provide regular FMLA. However, the FFCRA revises the employer threshold for purposes of eFMLA from “50 or more employees” to “fewer than 500 employees.” As such, all municipalities (unless you have more than 500 employees) are required to provide eFMLA to any “eligible employee” (defined as an employee who has been employed for at least 30 days) who requests eFMLA because they are unable to work (or telework) due to leave to care for the son or daughter under 18 years of age if the school or place of care has been closed, or the childcare provider of such son or daughter is unavailable, due to a public health emergency. In addition, the Department of Labor has provided guidance that adult son or daughter who is 18 years of age or older, who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.How many hours are employees entitled under ePSL?A two-week period for full-time firefighters is longer than 80 hours (104 hours), do employees working over 80 hours in two-week period only entitled to 80 hours? Yes. The Act only allows for 80 hours under ePSL.6.) Emergency Family and Medical Leave First (eFMLA) First 10 days Are the first 10 days of Emergency Family and Medical Leave First (eFMLA) paid or unpaid? Unpaid. However, the employee can use Emergency Paid Sick Leave (ePSL) to get paid (capped at $200/day if taken for child-care purposes) during the first 10 days of Emergency Family and Medical Leave (eFMLA). In addition, employees may use accrued leave concurrently with eFMLA to supplement their wages if allowed by your personnel policy.7.) Taxation under Emergency Family and Medical Leave (eFMLA)Do we still deduct FICA from employee's check when paying two-thirds of regular rate for Emergency Paid Sick Leave (ePSL) for the following reasons #4 - #6?Reason #4: The employee is caring for someone subject to a federal, state or local quarantine or isolation order related to COVID-19 or who has been advised by their healthcare provider to self-quarantine for COVID-19 related reasonsReason #5: The employee is caring for his or her son or daughter because the child’s school or childcare facility has been closed or the childcare provider is no longer available because of a COVID-19 related reason Reason #6: Experiencing any other “substantially similar condition” specified by Secretary of?Health and Human ServicesYes. Deduct employees social security contribution (6.2%) and Medicare contribution (1.45%). Do not deduct the employers social security contribution (6.2%) for any wages paid pursuant to the FFCRA.Can we pay employer social security taxes if choose to do so?There is no clear guidance on this, but presumably the employer you could pay more in taxes than required under the Act. Are the employee and employer social security taxes exempt from the Act? No. Only the employer social security portions are exempt up to the daily thresholds in the Act. Employee withholding should still be done as usual.If an employee qualifies for Emergency Paid Sick Leave (ePSL) and Emergency Family and/or Medical Leave (eFMLA) and an employer chooses to provide regular pay and deduct employer social security, can that time be recorded as Emergency Paid Sick Leave (ePSL) and Emergency Family and Medical Leave (eFMLA).There does not appear to be any prohibition against doing this. As a general rule, employers can choose to pay more than is required, so you could choose to pay the employee’s regular pay rather than calculate the amount required under the FFCRA. Again, there is no clear guidance on whether an employer can choose to pay the employer’s FICA social security tax, but presumably you could pay more in taxes than you are required to. Of course, it will be important to document that you are providing the leave under the FFCRA, particularly if you are going to be paying regular wages and FICA taxes. The best practice is to document the qualifying reason for providing the leave, and to make clear that the leave is being provided as emergency leave under the FFCRA (as required by the latest guidance from the Department of Labor).What if the local government chooses to include emergency responders and they are regularly scheduled for 96 hours. If the local gov't chooses to pay the extra 16 hours above the 80 hours, is the employer required to pay the 6.2% social security on those 16 hours?Yes. Any amount that is not required to be paid by the FFCRA (such as wages paid above the cap) would be considered regular wages not subject to the FICA exception under the FFCRA. If an employee chooses to use accrued leave for one-third of pay due to reasons #4, #5, or #6 but their total gross pay is still under the cap ($200 per day / $511 per day), does the employer have to pay social security tax on the amount over the two-thirds of pay? Yes. Any amount of wages that are not required by the FFCRA are not subject to the FICA exception. As such, the social security FICA taxes should be paid on the wages paid for accrued leave, even if those wages are still below the cap. Example: An employee makes $12 per hour and works 8 hours per day. The regular rate would be $96 for one day. The 2/3 rate would be $64 per day. The 2/3 rate is under the $200 daily cap. The employee would like to use 1/3 of his accrued hours to make him “whole.” The four hours needed to make him “whole” would not be subject to employer social security under the Emergency Paid Sick Leave (ePSL). The statute notes that “any wages required to be paid by reason of” the Sick Leave Act. The same holds true for an employee taking Emergency Family and Medical Leave (eMFLA). See question 34 under the Department of Labor guidance. If an employee is being paid more than $200 daily then social security taxes are withheld from any excess amounts.Are employees being fully taxed on the 2/3 pay just as if the person was regularly working?Yes. The employees tax deductions for social security and Medicare (FICA) stay the same.8.) Can we limit those that are not exempt from the Act due to staffing concerns? Employers may only exempt those who fall under the definition of Emergency Responders, and this must be done by the governing board as a policy decision. Employers may choose to exempt anyone who falls under this definition but cannot exclude anyone else. 9.) Can employers send an employee home to self-quarantine? If an employer has an employee that travels out of state against the guidance of the Town, Health Department, etc. Can the town require the employee to self-quarantine? If yes, would they be entitled to pay under the Act or would the employee have to use their accumulated time?In general, an employer can send employees home that are showing symptoms of being sick, but cannot direct an employee to self-quarantine. For more information about employees exposed to someone diagnosed COVID-19, please see the School of Government Coates’ Canons: NC Local Government Law Blog – What to Do When an Employee Is Infected with Exposure to COVID-19.If an employee is required to self-quarantine under a local order, for example a county has a restriction in place that requires citizens to self-quarantine if the person crosses state lines, then the employee would qualify for Emergency Paid Sick Leave (ePSL) under reason #1 subject to a local quarantine or isolation order. However, keep in mind that if the individual is an “emergency responder,” as defined by the FFCRA, they may be exempted from the terms of the FFCRA if the governing board has chosen to exempt them. Sending employees home with no symptomsIf employer sends home an employee who might have been exposed, do they qualify for the paid leave or do they have to get documentation from a medical provider to qualify for the paid leave?The employee will not qualify for Emergency Paid Sick Leave (ePSL) as the employee must meet one of the six reasons listed in the Act. If they are sent home because they are experiencing symptoms, and they are seeking a diagnosis, or have been advised by a health care provider to self-quarantine, they will qualify for Emergency Paid Sick Leave (ePSL).If an employee's spouse has been advised to isolate because of possible exposure and the employer wants to send the employee home to self-isolate. Will the employee be able to use the Emergency Paid Sick Leave (ePSL) for that?If the employee needs to take leave to care for their spouse, who has been advised to self-quarantine by a health provider, they would be qualified for ePSL for reason # 4. However, the employer’s decision to send an employee home due to concerns over possible exposure does not in and of itself qualify as a reason to take Emergency Paid Sick Leave (ePSL).Sending employees home with symptoms.If an employer is performing daily screenings and an employee demonstrates several symptoms and employer send the employee home to isolate or quarantine for 7 days, will the employee qualify for the emergency paid sick leave?Simply being sent home by the employer to isolate does not qualify an employee. However, if they are sent home because they are experiencing symptoms, and they are seeking a diagnosis, or have been advised by a health care provider to self-quarantine, they will qualify. As such, any employees sent home for concerns related to COVID-19 should be encouraged to get tested, which would make them eligible for paid leave (as long as they are seeking testing).It is also worth noting that the CDC has issued recommendations which states that an employee who is considered a “critical infrastructure worker” may be allowed to, but are not required to, return to work following potential exposure as long as they remain asymptomatic and additional precautions are implemented to protect them and those they interact with from potential exposure. “Critical infrastructure workers” include all employees working in public health, first responders, 911 dispatchers, emergency management personnel, all employees of municipal utilities, employees in water and wastewater services, social services employees involved in food assistance programs, child protective services and elder and dependent abuse prevent, public transportation workers, public works personnel, elections personnel, information technology employees, registers of deeds, and those employees whose work supports the provision of services in these areas. Many municipal employees qualify as “critical infrastructure workers.” However, just because they are a “critical infrastructure worker” does not exclude them from the application of the FFCRA. Only those employees who are excluded by the governing board as “health care providers” or “emergency responders” may be excluded – by a policy adopted by the governing board. 10.) Making the employee “whole” requirements under the Act.When the employer pays at the 2/3 rate, is the employer required to allow employees to use additional available leave to keep their check “whole” if employee chooses? Can the employer make unilateral decision to not allow an employee check to be “whole”?The Act does not require the employer to make employee to be “whole.” Each employer needs to make that decision consistently among all eligible employees. Under DOL guidance, you may not require your employee to use existing leave concurrently with the paid sick leave under the EPSLA. But if you and your employee agree, your employee may use preexisting leave entitlements to supplement the amount he or she receives from paid sick leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave that is not required to be paid or exceeds the limits set forth under the FFCRA. In contrast to the ePSL, the DOL has issued guidance stating that an employer may require an employee to use accrued leave concurrently with eFMLA if they have a policy in place requiring this. According to DOL Guidance (Q&A # 31), if an employee is allowed or required to use accrued leave concurrently with FMLA, then they should be paid the full amount of pay which they would be entitled to for leave taken under the policy, and then at least 2/3 of their pay once they have exhausted their preexisting paid leave. Does the governing body need to make the decision as to whether an employee can use their own accrued paid leave for the remaining 1/3 to make the employee whole?Under DOL guidelines, an eligible employee may elect to use, or an employee may require that an employee use, eFMLA concurrently with any leave offered under the employer’s policies that would be available for the employee to take care for his or her child, such as vacation, personal leave, or paid time off. As such, the use of concurrent leave for eFMLA is only available if your current policy provides leave for child care. Unless the personnel policy already allows this, then it would be prudent to have the board approve this. If eFMLA leave is used concurrently with another source of paid leave, then the employer has to pay the employee the full amount to which the employee would be entitled under the existing leave policy, even if that amount is greater than the FFCRA limit of $200/day or $10,000 in the aggregate. However, the employer’s eligibility for FICA tax exemption is still limited to the cap of $200/day or $10,000 in the aggregate. Under the Emergency Family Medical Leave Act (eFMLA), if you have an employee seeking leave under the child care provision and receiving 2/3 their salary, can they make up the 1/3 of their work day by "teleworking"?If you allow intermittent leave, an employee would be allowed to work 1/3 of their work day by teleworking, but they would be paid their full wages for any time worked, and 2/3 of their wages for any time they use eFMLA. For example, if an employee took eFMLA for 6 hours, and teleworked for 2 hours, they would be paid 2/3 of their wages for the 6 hours of eFMLA, and full wages for the 2 hours worked. As such, they could not reach 100% of their wages using this method. However, they could have other accrued paid leave run concurrently with eFMLA (if allowed by policy) to make up the remainder of the 1/3. 11.) Taxation / Form 941 and Taxation Any information on a change to IRS Form 941 for reporting?Information about deferral of employment tax deposits and payments through December 31, 2020 can be found on the IRS website. 12.) State of Emergency Does a State of Emergency need to be in place for employee to qualify for the leave? Yes. An active public health emergency must be declared by federal, state or local authority and must be related to COVID-19. Information about North Carolina’s Declaration of a State of Emergency can be found here.Do stay at home orders qualify employees for Emergency FMLA (eFMLA) and/or Emergency Paid Sick Leave (ePSL)?DOL guidance states that “quarantine or isolation orders” includes a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility. However, an employee is only entitled to emergency leave if they are unable to work due to that order. For example, the North Carolina current Stay at Home Order requires non-essential employees to stay home. However, employees who are necessary to provide “essential governmental operations” are exempt from the order. “Essential Governmental Operations” means all services provided by the State or any municipality, township, county, political subdivision, board, commission or agency of government and needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety and welfare of the public, and including contractors performing Essential Governmental Operations. Each government body shall determine its Essential Governmental Operations and identify employees and/or contractors necessary to the performance of those functions. As such, someone who has been deemed as essential is not prevented from working pursuant to this Stay at Home order, and would not qualify for emergency leave under reason # 1. In contrast, a non-essential worker who is prevented from working due to this order (i.e., there is available work and the employee is unable to telework) would be entitled to leave Emergency Paid Sick Leave (ePSL). However, if there is not available work, then the employee is unable to work because of the stay at home order, and the employee would not be qualified for Emergency Paid Sick Leave (ePSL). 13.) Part-time employees under Emergency Paid Sick Leave (ePSL) and Emergency Family Medical Leave (eFMLA).Are a certain number of hours for part-time required to qualify? The Act does not define the number of hours per week (or on average) and employee must work to qualify for the leave. All part-time employees, regardless of hours worked will qualify. Do part-time seasonal and temporary staff qualify? Yes. See question the Department of Labor’s additional guidance question 76.14.) Administrative Leave vs. Emergency Paid Sick Leave (ePSL) and Emergency Family Medical Leave (eFMLA).If a municipality plans to continue to pay their employees their regular wages, including those that are working from home if their jobs allow, staying home and being on call, or sent home due to no work, without the use of accrued leave or comp time, what would be the effect on compliance with the FFCRA? This leave would not be considered Emergency Paid Sick Leave (ePSL) or Emergency Family and Medical Leave (eFMLA) because the employee does not meet any of the reasons to qualify for either leave. As such, if the employer decided to stop paying employees their regular wages for any reason, those employees may still qualify to take additional leave under the FFCRA, assuming that work is available and they are unable to perform that work due to one of the qualifying reasons (and they have not been exempted as an emergency responder by the governing board). Is an employer allowed to just pay employees full pay regardless if folks are not working to avoid any financial hardship? No accrued leave would be used.If the employer’s personnel policy allows the town to pay employees for being out of work without the use of accruals, then the employer may do so. However, if the personnel policy does not allow or is silent on the matter, the governing body would need to approve such a policy.15.) Can employers use accrued time for Emergency Paid Sick Leave (ePSL) and Emergency Family Medical Leave (eFMLA)?Under eSPL, are employers required to use employees sick time available to pay employees up to 80 hours or is it an expense to the employer without using the employee sick time?This is an expense that the employer will need to absorb. The Act strictly prohibits employers from using accruals for ePSL. Recent guidance from the U.S. Treasury regarding funds from the federal CARES Act indicates that funding may be available to local governments to cover expenses related to the federally mandated leave. As of the writing on this document, no funds have distributed to NC local governments.16.) Americans with Disability Act (ADA)If an employee has been advised by his doctor that he needs to stay home due to a medical condition. He has accrued leave to cover the time that he must be out. Is he entitled to 80 hours of Emergency Paid Sick Leave (ePSL)? If the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, then that employee is entitled to ePSL under reason # 2. If an employee is advised to stay home due to some other underlying medical condition (unrelated to COVID-19), then they would not meet any of the reasons in the Act to be entitled to Emergency Paid Sick Leave (ePSL). However, this employee may qualify for a reasonable accommodation under ADA. If telework is available, then that may be a reasonable accommodation for the employee. If telework is unavailable, then the employee will likely need to accrued leave unless there is accommodation that can made in the workplace. Does COVID-19 and/or symptoms qualify as a disability under ADA?It is unclear how a court would treat this. The EEOC appears to assume that COVID-19 would qualify as a disability, and has provided guidance, which can be found here. It is also worth noting that underlying health issues exacerbated by COVID-19 may qualify as a disability under the ADA.17.) Bereavement Leave How do we deal with bereavement leave that may be related to COVID-19?The Act does not speak to bereavement leave. Employers should review the personnel policy for requirements under bereavement leave. If the personnel policy is silent, then the governing body may need to consider an amendment to the policy to give the municipality guidance on the matter.18.) Transitioning from Emergency Paid Sick Leave (ePSL) to Emergency Family and Medical Leave (eFMLA)I thought after 80 hours of Emergency Paid Sick Leave (ePSL) if the employee transitioned over to Emergency Family and Medical Leave (eFMLA) the employee is required to use accrued time?The first 10 days of eFMLA leave is unpaid but can run concurrently with ePSL. After the first 10 days, the employee is entitled to no less than 2/3 the regular rate when using eFMLA. Whether an employee is entitled to – or required to – use accrued time concurrently with eFMLA is dependent on your personnel policy. According to DOL Guidance (Q&A # 31), if an employee is allowed or required to use accrued leave concurrently with FMLA, then they should be paid the full amount of pay which they would be entitled to for leave taken under the policy, and then at least 2/3 of their pay once they have exhausted their preexisting paid leave. What we are finding with those employees we send home, when they contact their healthcare provider, the provider is giving them an order to quarantine or isolate for five or seven days. Then, we deem them qualified for the emergency sick leave.The employer should not send an employee home that is not showing symptoms of being sick unless the employee self-discloses that he or she has potentially been exposed, or is otherwise subject to a federal, state, or local order to isolate or quarantine. Once an employee has been advised by a healthcare provider to quarantine or isolate, they are entitled to paid leave for the duration of the amount of time they have been ordered to quarantine or isolate (up to 80 hours). It is important to note that CDC guidance states that an employee who is considered a “critical infrastructure employee” may be allowed to work following a potential exposure (but would still be entitled to emergency leave unless exempted as an emergency responder). For more information about “critical infrastructure employee” please click here. 19.) Intermittent Leave / TeleworkIf the employee can telework does the employee qualify for ePSL?No, unless they are prevented from teleworking due to one of the qualifying reasons, such as child-care. If the employee meets any of the #1-6 reasons, even if they would otherwise have the ability to telework, then he/she will qualify for ePSL. An employee who wants to take some occasional leave to help their school age children with homework and getting the technology to work for the remote schooling. They want to know if either the ePSL or eFMLA applies to them.Yes. The employee is eligible for ePSL and eFMLA under reason #5 – “caring for son or daughter if school or daycare is closed, or if the childcare provider is unavailable due to COVID-19 precautions.” Under reason #5 the employee can take intermittent leave under ePSL if allowed by the employer. Under eFMLA employers may allow for intermittent leave upon agreement of employer and employee. In addition, The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs and is supportive of voluntary arrangements that combine telework and intermittent leave.There are husband and wife working at same place. School is closed, and they rotate days off with child. Do they use their sick leave for that time or do they take the time off, without using leave accrual time and be paid under ePSL and eFMLA?The employees would be entitled to intermittently use ePSL and eFMLA, if intermittent leave is allowed by the employer. Whether an employee is entitled to – or required to – use accrued time concurrently with eFMLA is dependent on your personnel policy. According to DOL Guidance (Q&A # 31), if an employee is allowed or required to use accrued leave concurrently with FMLA, then they should be paid the full amount of pay which they would be entitled to for leave taken under the policy, and then at least 2/3 of their pay once they have exhausted their preexisting paid leave. I am curious about the time period that the employee is “seeking a diagnosis” to be tested, does the employee get paid the full time that they are out waiting for the results under the ePSL?Yes. While awaiting test results (or waiting to get tested) the employer is entitled to use ePSL, and they are paid their full wages (up to $511/day) if they take emergency sick leave because they are experiencing symptoms and seeking a diagnosis (Reason # 3). If the results are negative, then the employee should return to work or take accrued time if he/she continues to need to be out of work, unless they qualify under a different reason.20.) FLSA Exempt Employees Testing PositiveIf an employee tested positive for the COVID-19, should other employees that were close proximity go home for 14 days to self-quarantine?Generally, the employer should not send employees home if they are not sick or have not been exposed. If the employee is sick, then the employee should go home. If the employee goes home and is seeking a medical diagnosis for COVID-19, then the employee would qualify for ePSL. If the employee is a “critical infrastructure employee,” then the employee may come back to work after an exposure. If the employee is not a critical infrastructure worker, then the CDC recommends self-quarantine at home for 14 days after the last exposure to someone with COVID-19 and practice social distancing. Employees who are concerned may contact a health-care provider – if they are advised to self-quarantine, they can then use emergency leave to do so.21.) Exempt employeesHow does ePSL "in full day increments" apply to exempt employees? There is currently no guidance for exempt employees. We recommend calculating pro-rated hourly rate from their salary and multiply 2/3 regular rate by the number hours in the workweek. For eFMLA we recommend calculating pro-rated hourly rate from their salary and multiply no less than 2/3 regular rate by the number hours in the workweek.22.) Documentation What documentation is required?All employees should provide the following for ePSL and eFMLA:(1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. According to the DOL, additional documentation is required dependent on the reason:Reasons # 1: The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19[employee] must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.Reason # 2: The employee has been advised by their healthcare provider to self-quarantine because they are infected with or have been exposed to COVID-19 or because they are at a high risk of complications from COVID-19[employee] must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons. Reason #3: The employee is showing symptoms of COVID-19 and is seek but has not yet received a medical diagnosisIt appears the DOL has not provided any guidance on what type of documentation an employee is required to provide for this reason (an earlier version of the DOL guidance stated than an employee must provide the name of the health care provider who advised him or her to self-quarantine, but this appears to have been removed from the guidance). Best practice would likely be documenting the name of the health-care provider from whom the employee is seeking a diagnosis. Reason #4: The employee is caring for someone subject to a federal, state or local quarantine or isolation order related to COVID-19 or who has been advised by their healthcare provider to self-quarantine for COVID-19 related reasonsThe government entity that issued the quarantine or isolation order to which the individual is subject ORThe name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request. Emergency FMLA and Reason #5: The employee is caring for his or her son or daughter because the child’s school or childcare facility has been closed or the childcare provider is no longer available because of a COVID-19 related reason (1) the name of the child being care for; (2)the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3)a statement representing that no other suitable person is available to care for the child during the period of requested leave. ................
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