Frequently Asked Questions –
COVID-19 HR Briefing I
We have put together a list of frequently asked questions during our recent HR Briefings with Andrew Singer of Tannenbaum Helpern Syracuse & Hirschtritt LLP
. A few quick questions:
- Can we layoff some employees if the business has been impacted? Yes
- Can they collect unemployment? Yes
- Employees eligible for $200 per day in the event no telecommute or their child’s daycare or school is closed… Would this also apply to a “receptionist” or in office only role? Applies to all employees if they are otherwise eligible for benefit
- Can you confirm whether or not the 10 sick days would be on top of the 5 that we are required to give as per NYC sick leave? Also, would only the employees that are sick/diagnosed/in contact with the virus receive these days, not everyone correct?
--- As currently written, yes - the federal bill requires that the 80 hours (10 days) of emergency paid sick leave be in addition to the 40 hours (5 days) employers are required to give under the NYC paid sick leave law.
- What are the pro's / con's of labeling current "lay-offs" or "temporary" as a furlough?
--- There is no legal difference. "Furlough" may be better for employee morale.
- As I understand it, our company needs to pay 100% of an employee's salary the first 10 work days if they are sick or quarantined, then we pay 2/3 of the salary for the next 12 weeks.
--- It really depends on how the employee chooses to use it. We interpret the current drafting of the federal bill as follows - an employee could take the first 10 days as emergency paid sick leave, which is paid at the employee's regular rate of pay if the employee is sick, or paid at 2/3 the employee's regular rate of pay if the employee is caring for a sick family member or a child whose school or daycare was closed. Then there is the emergency FMLA, which provides 12 weeks of leave - the first 14 days of which could be unpaid. However, the employee may choose to use any available sick leave, vacation or other PTO during those otherwise unpaid 14 days. After the 14 days, the employee gets paid emergency FMLA at 2/3 the employee's regular rate of pay.
- Is there a difference in payment between taking care of a diagnosed family member, or taking care of an out-of-town school child?
--- No difference. If taking leave for those purposes under the NYC sick leave law, the employee is compensated at the employee's regular rate of pay. If taking leave for those purposes under the proposed federal bill (emergency paid sick leave or emergency FMLA), the employee is compensated at 2/3 the employee's regular rate of pay.
- Please tell me about the order of payment from various policies. For example, which takes effect first: NY PFL or the new federal plan? What always takes priority?
--- It really depends on the qualifying reason for the leave and how the employee may choose to use certain leaves. For example, NY PFL cannot be used for an employee's own serious health condition, so it would not apply if the employee had Coronavirus - however, FMLA would apply because it can be used for an employee's own health condition. Generally, employers should first apply any paid sick leave that employees may be eligible to use (for example, under NYC paid sick leave law). Then, it will depend on the qualifying reason for the leave whether to turn to NY PFL or FMLA.
- What if people ask to work remotely, but then choose not to?
--- You should follow your company policy with respect to remote work. If employees are not following your policy, you can discipline them.
- What if someone doesn't have a home environment that allows them to work?
--- It is up to the employer to determine whether to keep the employee employed or find another suitable work arrangement. The employer has discretion in this situation.
- Is it ok to make someone take off the two-week self-quarantine time, after personal travel abroad, and make them use current/future PTO time to pay for it?
--- If the employee does not otherwise qualify for a paid leave (such as sick leave), then yes - you can require them to use PTO you offer.
- I just also want to clarify that if we have an existing PFL policy in place that is more generous than the emergency FMLA requirements, we are not required to do FMLA in addition to our existing PFL- is that correct?
--- Yes. As the federal bill is currently written, you would not need to provide the emergency FMLA in addition to your own more generous PFL. However, your policy should be clear that your existing PFL policy runs concurrently with any FMLA leave to which the employee may be entitled.
- I have a question about the emergency FMLA law. Would cover employees who have to stay home because of school or daycare closures or is that just under the paid sick leave portion? I know typically PFL is not for child care but I have seen conflicting info about the new emergency FMLA legislation.
--- Yes. As currently written, the federal bill would allow employees to stay home to care for a child whose school or daycare provider closed due to Coronavirus.
- How does this apply to per diem staff that work 14 or less hours per week. Are these staff members able to use NYC sick leave due to not being able to work on site and not able to telecommute? If there is another Brio staff member who can better advise, please let me know.
--- All employees (full-time, part-time, temporary, per diem, etc.) accrue sick leave under NYC’s paid sick leave law at a rate of 1 hour for every 30 hours worked, up to a maximum of 40 hours per calendar year, which can be used to take leave from scheduled work for certain permitted purposes, including: (i) when the employee is sick, (ii) when the employee is caring for a sick family member, (iii) when the employer’s place of employment closes due to a public health emergency as declared by certain public officials, or (iv) to care for a child whose school or daycare closed due to a public health emergency. If an employer voluntarily shuts down its office, and none of the foregoing permitted purposes for using NYC sick leave are applicable, then the per diem employee may not be eligible to use NYC paid sick leave. The employer could, of course, permit the employee to use any accrued sick leave though.
- I read the following on the DOL website – “NYS is waiving the 7-Day waiting period for Unemployment Insurance benefits for people who are out of work due to Coronavirus (COVID-19) closures or quarantines.” We are going to require employees to take a 2 week furlough over the next 2 months. Would they be eligible for Unemployment Insurance benefits during this furlough?
--- Yes, provided they otherwise meet the unemployment insurance eligibility requirements (e.g., the employee is ready, willing and able to work, etc.).