Frequently Asked Questions –

COVID-19 HR Briefing II

We have put together a list of frequently asked questions during our recent HR Briefings with Andrew Singer of Tannenbaum Helpern Syracuse & Hirschtritt LLP

 

  1. HR 2601 seems to redefine FMLA (Emergency FMLA Expansion Act)--I'm specifically wondering about the definition of "eligible employee" and the employer size threshold.  Could you go over those things? Title III, Division C, Section 3102?

--- Solely with respect to the Emergency FMLA provisions, a covered employer is one with less than 500 employees, and an eligible employee is one who has been employed for 30 calendar days for the employer. (This is different than traditional FMLA).

  • Also, I work for a small non-profit and we have lots of non-exempt hourly employees.  How does the law address this class of EE's?

--- The Emergency FMLA law does not distinguish between employees in terms of eligibility for leave. Nonexempt hourly employees are eligible for the leave as well (after they have been employed for 30 calendar days).

 

  1. We are a Connecticut business that is required to close our office based on the Governor’s executive order. My questions are as follows:
    • Some employees can work from home but others cannot. If we choose to pay everyone, how do we make it fair for those that are still working? If choose not to pay those that are not working what is our obligation to them? Is there a notice period and what paperwork is required?

--- Ideally, only those employees who are actually working are paid. You can permit those employees who are not working to use up any accrued vacation, sick leave, or other paid time off, if you wish, but otherwise employees who are not working would not be paid. If employees are no longer working (e.g., they are furloughed, terminated, etc.), you can tell them that they can file for unemployment insurance. You should notify them as to how their employee benefits (health insurance, 401K, etc.), if any, will be impacted. In addition, depending on the size of the employer and the amount of workforce reductions, you may have to provide notice pursuant to the Connecticut and federal WARN Acts.

 

  1. If I had greater than 500 ee’s, terminated a great portion of them as of 3/31, as of 4/1 do I follow the sick leave and FMLA?

--- The law does not address as of what time period the 500 employee threshold applies. Without further guidance, it is fair to assume you count the number of employees as of the effective date (April 2, 2020).

  • Federal FMLA law is 10 weeks. Is that separate from the standard 12 weeks or is it a combination of 12 in total

--- This should be clarified in regulations/additional guidance before the effective date, but it is fair to assume the 12 weeks of Emergency FMLA are in addition to the 12 weeks employees can take under traditional FMLA – particularly, since the reason for Emergency FMLA is different than the reasons for which an employee can take traditional FMLA.

  • NY paid leave calculation is based on just the employees that reside in NY correct --- The law does not specify. Without the specification of only counting employees working in NY, employers should count all employees, including those who work outside of NY.
  1. If an employee is on temporary leave can they file for unemployment?

--- Yes.

  • What if they are provided benefits during the temporary layoff can they file for unemployment?

--- Yes, but if the employee is getting some sort of severance pay, the employee may not be able to collect unemployment during the period the employee is receiving severance.

 

  1. Are Employers required to pay any Notice Period (separate from any actual confirmed Sick Leave Pay, related to virus) for any furloughed EE’s and if so for how long, and effective when?

--- If an at-will employee is furloughed, there is generally no obligation to give advance notice or pay the employee during the furlough.

  • Are Employers required to pay PTO to EEs during any furlough period, if requested?

---Generally, no. However, make sure you follow your PTO/sick leave policies.

 

  1. If a caregiver is unable to work, they could be eligible to receive 80 hrs of paid leave after a 10 day waiting period.

--- Not quite. If someone who is unable to work is taking leave to care for a child whose school or childcare provider closed, they can take 80 hours of paid sick leave (assuming a full-time employee) under the new federal emergency paid sick leave law, and then 10 weeks of paid leave under the federal emergency FMLA law.

 

  1. If an employee is unable to work due to a fed/state/local directive, they could receive 80 hrs of paid leave.
    • Would the 10 days of paid leave be in addition to whatever sick day policy an employer has? --- Yes.
    • And, given that NY and NJ have mandated all non-essential workers stay home, does the expanded FMLA even apply?

--- It depends whether or not the employee is able to work remotely (and whether the employer continues to employ the employee to work remotely).

I guess it could if you are considered an essential worker but your child’s school is closed?

--- If an employee was still working (whether remotely or because the employee is “essential”), and then the child’s school closed which rendered the employee unable to work as the employee would need to care for that child, then the employee could use emergency FMLA.

 

  1. As far as temporary layoffs are concerned, are employers required to pay salaried employees their full pay for the last week they worked only, or for the duration of the layoff?

--- There is no requirement to pay an employee after the termination date.

 

  1. For the new employee paid by hourly during the probation period, should the employer pay him/her if he/she calls for sick leave regardless it's COVID-19 related or not?

--- There are a number of variables here. Generally, if an employee is eligible for sick leave (eligibility will depend on the applicable law and/or employer policy), the employee should be provided the sick leave, regardless of whether or not the employee is subject to an employer-designated “probation period.”

 

  1. My question is related to the new law in NY state around paid sick-leave related to an order of quarantine or isolation. It an employee needs to be out of work to care for a minor child who is subject to a quarantine order, is that employee eligible under the new NY state paid-sick leave requirement? --- No.
    • In other words, is the employer required to pay that employee 14 days of paid sick time? –

-- No, caring for a child is not a permitted purpose under the new NYS COVID-19 sick leave law.

Or, is the employer only eligible for benefits under NYPFL?

--- The employee would be eligible under the new federal emergency paid sick leave law.

 

  1. For part timers:  I understand there is an emergency sick leave benefit that is being paid regardless of whether that state has any earned paid sick leave policy currently in place.  The Emergency benefit as I understand is that part timers will be paid the average of what they would have worked within a two week period.
    • We have business in three states that have been closed since March 13.   NJ, NY and Connecticut.  NJ and NY have a sick leave part time policy already in place, so these employees have been accruing hours to date in 2020.  What if their accrued sick time for two weeks work exceeds the new Emergency Sick Leave benefit? Are they paid the higher amount for two weeks?

--- As an initial matter, if the business is closed and the employees have not been working as of March 13th, there is no obligation to pay such employees under the new federal emergency FMLA, federal emergency sick leave, or the new NYS COVID-19 sick leave law. Nevertheless, the new NYS COVID-19 sick leave is provided in addition to current or existing sick leave to which an employee is entitled, but remember, it is a New York law and only available to employees who work in New York.

  • Do we deduct the hours we paid them for Emergency Sick Leave, from their standard accrued hours?

--- No, the federal emergency sick leave is provided in addition to other sick leave or PTO provided by the employer.

  • If there is no return date for these part timers, do we have to pay sick leave or do they automatically file for unemployment?

--- If they are not currently working simply because the business closed, then they should file for unemployment.

  • What if some of these part timers already filed for unemployment?  Do we still go ahead and pay them the Emergency Sick Leave or any sick leave benefits?

--- No.

  • What happens after we pay them for two weeks?  Do the employees who have a balance of accrued sick hours receive the balance after the two weeks?

--- There are many variables here. Why did we pay them for two weeks? Are they still employed? Generally speaking, the federal emergency FMLA, federal emergency sick leave, and NYS COVID-19 sick leave benefits are provided in addition to (i.e., on top of) other sick leave/PTO already offered by the employer.

 

  1. Is the 500 employee limit for employees aggregated in a controlled group or per subsidiary?

--- Assuming the traditional FMLA regulations apply, there is an integrated employer test used to determine if several companies are considered so interrelated that they constitute a single employer. The factors considered in determining whether two or more entities are an integrated employer include: (i) common management; (ii) interrelation between operations (e.g., payroll, HR, banking, administration, etc.); (iii) centralized control of labor relations, and (iv) degree of common ownership/financial control.

 

  1. Since the Emergency Paid family leave does not take effect until April 1, does the time prior for school closings count towards the 10 days unpaid?

--- The law does not say it applies retroactively. Accordingly, eligibility for the leave will depend on the circumstances as of the effective date (which is April 2, 2020).

 

  1. Can employer terminate due to business downturn before employee can take advantage of the new FMLA?

--- Generally, yes.

 

  1. That is, full pay for two weeks and after two weeks, 67% of pay with the cap.  Can you remind us the cap for the period after 2 weeks?

--- Federal emergency FMLA is capped at $200 per day and $10,000 in the aggregate. (Note there are caps under the federal emergency paid sick leave act as well).

 

  1. Does an employee have to use PTO that they have built up before taking unemployment? --- No.

 

  1. For employees in NY, is it employment total in NY only or total company –

-- The law does not specify. Without the specification of only counting employees working in NY, employers should count all employees, including those who work outside of NY.

 

  1. Question about Federal Sick Leave. Our company has started laying off team members. Our employee count right before this was 620 but it will fall under 500 once we complete our lay-offs. Is the employee count piece based on our count as of April 2nd?

--- The law does not address as of what time period the 500 employee threshold applies. Without further guidance, it is fair to assume you count the number of employees as of the effective date (April 2, 2020).

 

  1. If there is a parent company and subsidiary associated, does the subsidiary (if less than 50 ee's) follow the parent company or can keep them separate?

--- Assuming the traditional FMLA regulations apply, there is an integrated employer test used to determine if several companies are considered so interrelated that they constitute a single employer. The factors considered in determining whether two or more entities are an integrated employer include: (i) common management; (ii) interrelation between operations (e.g., payroll, HR, banking, administration, etc.); (iii) centralized control of labor relations, and (iv) degree of common ownership/financial control.

 

  1. In New York, under the new state law, are all employers required to give 5 days of sick leave either front loaded or one hour for every 30 hours worked?

--- No, under the new NYS COVID-19 sick leave law, the amount of sick leave depends on the size of the employer. You seem to be referring to the NYC paid sick leave law, under which employees accrue 1 hour of sick leave for every 30 hours worked, up to 40 hours per calendar year.

 

  1. Is severance pay mandatory? --- No.

 

  1. We may furlough some employees for a few months as they are unable to work from home.  Can we keep them on benefits during this time or is it in their benefit to terminate them?

--- You can keep them on benefits to the extent they still qualify under the applicable benefit plan documents. You can also tell them they can file for unemployment.

  1. If we keep employees as furloughed, are they still entitled to PTO?

--- You would need to follow your PTO policy. Generally, employers only provide employees with PTO to take leave from scheduled work. Since they are not working/not scheduled to work, there would be no requirement to pay them their PTO, but you need to follow your policy.

 

  1. Are furloughed employees eligible for unemployment benefits?

--- Yes, if they otherwise meet the eligibility criteria for unemployment (i.e., they are ready, willing, and able to work, etc.).

 

  1. I am confused as to what medical leave employees are entitled to under the Federal Medical Leave Act.  The speaker mentioned that the employee is entitled to 12 weeks unpaid job protected leave.  Then he spoke about benefits after 10 days of 2/3 of pay for employees up to $200/ per day and 10K in the aggregate.  Does that mean that employees can collect these funds for the time they are under quarantine?  How do they get these funds?  If they are paid by the employer are there going to be tax credits to the employer?

--- Traditional FMLA provides 12 weeks of unpaid, job-protected leave for certain permitted purposes. The new Emergency FMLA leave (which was the focus of the program) provides 12 weeks of job-protected leave to care for a minor child whose school or childcare provider closed or is unavailable due to COVID-19. The first 10 days are unpaid, and the remainder (i.e., the remaining 10 weeks) are paid at 2/3 the employee’s regular rate of pay, capped at $200 per day and $10,000 in the aggregate. These amounts are paid by the employer directly, but the employer is eligible for tax credits. The Emergency FMLA is not available for employees who are under quarantine, but employees who are under quarantine can take the federal Emergency paid sick leave.

 

  1. Under the current 3/18/20 NYS Legislation for Paid Sick Leave due to COVID-19, if we offer employees PTO time (12 days/year), is this NYS paid sick leave in addition to the PTO, or can the PTO take the place of the NYS paid sick leave?

--- The new NYS COVID-19 sick leave is provided in addition to current or existing sick leave/PTO to which an employee is entitled.

 

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