Employer and HR Manager FAQ

The COVID-19 crisis has created new challenges for HR-related matters. Please use the FAQ below to get the answers you need. If you aren’t able to find an answer to your question, please contact your HR business partner.

Reopening Resources & Tools

Frequently Asked Questions

Hiring During the COVID-19 Pandemic

If an employer is hiring, may it screen applicants for symptoms of COVID-19?

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.

May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam?

Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.

May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

CDC has issued guidance applicable to all workplaces generally, but also has issued more specific guidance for particular types of workplaces (e.g. health care employees). Guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety. To repeat: the ADA does not interfere with employers following recommendations of the CDC or public health authorities, and employers should feel free to do so.

May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

Hiring After a Pandemic

May an ADA-covered employer require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work?

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

This information is from the EEOC website

General 

Are part-time employees (less than 20 hours/week) that are laid off due to COVID-19 able to apply for unemployment?

Part-time employees may apply for unemployment. The state will make the final determination on eligibility.

I’ve heard you talk about an Employee Assistance Program (EAP). What exactly is it? Where can it be accessed? Is there a cost involved?

National Employee Assistance Program (EAP) is a resource for organizational health and performance management services that are beneficial to clients and employees alike. The program provides 24/7 support from EAP professional specialists in a variety of fields such as mental health, finance, child and elder care and legal who are trained to assist with confidential, effective solutions to assist employees with their concerns. Financial stress, grief and marital discord are just a few of the issues that employees are encouraged to reach out and discuss with these specialists in order to find support and solutions.

In the wake of COVID-19 and the stresses experienced from that alone EAP is hosting daily webinars of their own as well as virtual support groups on topics such as self-care, resiliency, trauma reactions and work organizational changes to name a few.

Prestige clients always have the option to sign-up and enroll for the EAP. During this COVID-19 pandemic, however there are some online services available to all our clients and their employees regardless of being enrolled.

Is there any help I can get through my health plan if I suspect I have symptoms associated with COVID-19 and where can I find test locations in my area?

UHC/Oxford Health has an online symptom checker. You can access it on the pre-login page of myuhc.com and it assesses members based upon their response and triages them into five levels: self-isolation; physician evaluation; same day care; emergency care; and, call 911.

UHC/Oxford Health also provides a test location tool which will provide test locations available to members within a certain mile radius of their zip code.  Here are the links to these invaluable tools:

What is an “Essential” Business?

Essential businesses, as defined by the U.S. Dept. of Homeland Security include such things as health care operations; infrastructure (utilities, telecommunications, airports, public transportation); manufacturing; retail (grocery and convenience stores, pharmacies, gas stations, restaurants for take-out only); services (trash removal, mail, laundromats, auto repair); news media; financial institutions (banks, insurance, payroll, accounting); providers of necessities to economically disadvantaged people (homeless shelters, food banks); construction; defense; safety and sanitation services (law enforcement; fire prevention and response; emergency management).
Businesses in PA, NY, and CT can apply for relief from being “essential” or request a waiver to be considered essential online
Penalties for violation of law vary from state to state but can include citations, fines, license suspension, and criminal penalties

If I am a private sector employer and have 500 or more employees, do the Acts apply to me?

No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.[1]

How should I manage work from home requests?

The first recommended step is to determine what job roles are critical to your company’s operations. This will assist in ascertaining if a position is remote work capable. If the roles are established to have remote work capabilities, the next step would be to inventory what equipment is required and access to the equipment while remote. After these steps have been completed, a policy should be put in place and communicated to employees on the specific expectations of working remotely. These may include; are employees encouraged to work from home and no longer to report to their work location; how meetings will be handled (in person or online); is the company providing the equipment employees are to use or will they be using their own. If during this process a role is determined to not be remote work capable, there are several options to explore. The company may wish to offer unpaid furlough or mandating vacation time. These options must also be compliant with any federal, state and local regulations.

An important item to note during this process is to ensure any decisions on working remotely are made objectively and nondiscriminatory.

Has there been a change to the Form I9 process?

ICE Issues Extension to Rules for Form I-9 Compliance

As of September 17, 2020 Immigration and Customs Enforcement (ICE) confirmed that employers have an additional 60-day extension regarding flexibilities related to Form I-9 compliance. The relaxation relates to the requirement to physically inspect all new hires’ identity and employment eligibility documentation as has always been the norm.  Relaxation was initially granted earlier this year due to COVID-19 and then extended in both May and June. The expiration date for the current extension is November 19, 2020.

It has also been confirmed that no additional extensions will be granted to employers who were served Notices of Inspection (NOIs) during March 2020 and are in the process of responding to ICE.

Expired List B Documents are Still Allowed

Also, the USCIS temporary policy allowing for the acceptance of expired List B documents continues with employers still required to follow up, where necessary, on documents treated as receipts. Per the guidance in the temporary policy, any expired List B document that was not formally extended by the state’s issuing authority should be treated as a receipt.  However, within 90 days after DHS terminates this temporary policy, the employee will be required to present a valid, unexpired document to replace the expired one presented when they were initially hired. The employee may also choose to present a different document.

Alternatives to the Virtual I-9 Method and Returning to Business

ICE has been very clear that it will not allow for virtual review to continue indefinitely, nor is it willing to waive the in-person review requirement once businesses do return to their normal place of work.  Employers should now be considering other options to the virtual policy as it is likely the current policy may end prior to businesses actually returning to their physical work location. One recommended option is the Authorized Representative model which, if selected, should be implemented carefully. Additionally, companies that have used the virtual option and are, or will be resuming business as usual, must ensure that all employee documents that had been remotely inspected are physically inspected within 3 days of returning to work. Be advised that ICE has not yet issued additional information about the logistics of completing Forms I-9, including instances where new documents have been presented or where the person physically inspecting documents is different from the original remote verifier.

Leave Policies

What if an employee is out sick using EPSL and then tests negative for COVID-19?

­If an employee tests negative for COVID-19 and the doctor recommends they return to work, then they should be coming back to work and would no longer be eligible for EPSL. ­The time during which an employee was out of work seeking a diagnosis would qualify for EPSL (it would need to be supported by medical documentation).

The Westchester County Sick Leave Law can be used for the same qualifying reason as discussed under EFMLA. Can employees request to use their own sick time under this policy to be paid 100%? If not, why is the employee requesting it?

Employees can elect to exhaust their accrued time off under the Westchester Sick Leave Law to supplement the remaining wages under the FFCRA. Employers will only receive the tax credit on wages paid under the FFCRA. You should work with your payroll specialist to accurately report on the time sheet what is being paid under FFCRA, and what is being paid under Westchester Sick Leave.

Is an employee entitled to use both the FFCRA EPSL and the NY COVID-19 Paid Sick Leave if they have two (2) separate qualifying instances at different times? For example, can they use EPSL when caring for someone else and then if they need to take time for themselves at a later date use NY PSL? If not, why?

NY Legislation has stated that should the federal government provide sick leave and/or other benefits to employees in response to COVID-19, the leave provided under NY law shall not be in addition to the federal benefits. The NY law will, however, supplement the benefits offered under the FFCRA to make up the difference between the two benefits. With this in mind, the benefits do not multiply with each reason it is needed. If an employee uses time for one reason, it does not replenish for another reason.

As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?

You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?

A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

Will DOL begin enforcing the requirements of the FFCRA immediately?

The Department will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e., March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act. If the employer violates the Act willfully, fails to provide a written commitment to future compliance with the Act, or fails to remedy a violation upon notification by the Department, the Department reserves its right to exercise its enforcement authority during this period. After April 17, 2020, this limited stay of enforcement will be lifted, and the Department will fully enforce violations of the Act, as appropriate and consistent with the law.

Does the non-enforcement position mean businesses do not need to comply with the FFCRA from the effective date of April 1, 2020 through April 17, 2020?

No, the FFCRA’s paid leave provisions are effective April 1, 2020. Private sector and public employers must comply with the provisions on the effective date even though the Department has a limited stay of enforcement until April 17, 2020. Once the Department fully enforces the Act, it will retroactively enforce violations back until the effective date of April 1, 2020, if employers have not remedied the violations.

What is expanded leave under the emergency family and medical leave expansion act?

The Emergency Family and Medical Leave Expansion Act amends the current Family and Medical Leave Act (FMLA), allowing leave for eligible employees who can’t work (or telework) because their minor child’s school or childcare service is closed due to a COVID-19 emergency declared by a federal, state or local authority.

Who is eligible for paid sick leave under the Emergency Paid Sick Leave Act?

All employees of private employers with less than 500 employees, regardless of how long they’ve been employed. Employees will be eligible if they are unable to work (or telework) because:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order or self-quarantine as described above.
  5. The employee is caring for a son or daughter if a school or child care is closed/unavailable.
  6. The employee is experiencing “any other substantially similar condition” specified by the Secretary of Health & Human Services.

How do I know which FFCRA paid sick leave my employees should take?

The FFCRA paid sick leave options fall into three categories:

  • Paid Sick Leave – employee subject to a federal, state, or local quarantine or isolation order related to COVID-19, the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19 or the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis. The employee is paid 100% of their pay rate for up to Two Weeks (80 hours), limited to $511 per day or $5,110 aggregate.
  • Paid Sick Leave (Care) – employees caring for an individual who is subject to an order of self-quarantine, the employee is caring for a son or daughter if school or childcare is closed/unavailable or employee is experiencing “any other substantially similar condition”. The employee is paid 2/3 of their pay rate for up to Two Weeks (80 hours), limited to $200 per day or $2,000 aggregate.
  • Child Care Leave (eFMLA) – employee unable to work (or telework) due to the need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed or is unavailable due to COVID-19. The employee is paid 2/3 of their pay rate for up to Ten Weeks, limited to $200 per day or $10,000 aggregate.

Contact your Payroll Specialist or Human Resource Business Partner for guidance regarding FFCRA Paid Sick Leave.

Wages & Payroll

Our office is open, but employees do not feel comfortable coming to work (they are not sick, and not taking care of sick families). They also do not want to use their 10 days PTO. Should we still pay them?

You are under no obligation to pay them, since they have the ability to work but are choosing not to come to work.

If an employee is requesting to use their own sick time or PTO instead of being paid according to the FFCRA, EFMLA, and/or EPSL because they want their full pay, can we allow this?

It is the employer’s responsibility to provide benefits under the federal guidelines set forth by the FFCRA. The employee cannot be forced to use their personal time off. Should the employee want to make themselves whole by exhausting their personal time off, they can. Employers should work with their payroll specialist to report accurately on the time sheet what is being paid under FFCRA, and what is not. Employers will only receive the tax credit on eligible payments under the FFCRA, not the personal time off used to supplement additional earnings.

When calculating pay due to employees, must overtime hours be included?

Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week. 

However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?

If one of your employees takes paid sick leave under the Emergency Paid Sick Leave Act, you must require your employee to provide you with appropriate documentation in support of the reason for the leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested.

Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised you to self-quarantine. For example, this documentation may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19.

If you intend to claim a tax credit under the FFCRA for your payment of the sick leave wages, you should retain this documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.

If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, under the Emergency Family and Medical Leave Expansion Act, you must require your employee to provide you with appropriate documentation in support of such leave, just as you would for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or childcare provider. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason. If you intend to claim a tax credit under the FFCRA for the expanded family and medical leave, you should retain this documentation in your records. You should consult IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.

May I supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?

If your employee chooses to use existing leave you have provided, yes; otherwise, no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including Federal employees. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings.

However, you are not required to permit an employee to use existing paid leave to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. Further, you may not claim, and will not receive tax credit, for such supplemental amounts.

May I require an employee to supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?

No. Under the FFCRA, only the employee may decide whether to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. The employee would have to agree to use existing paid leave under your paid leave policy to supplement or adjust the paid leave under the FFCRA.

If I want to pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can I do so and claim a tax credit for the entire amount paid to them?

You may pay your employees in excess of FFCRA requirements. But you cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits. 

Do I have to pay my employees if we close the company?

Paying employees is determined by their status under the Fair Labor Standards Act (FLSA) or under state law. 

Generally, nonexempt employees are compensated for hours worked. With nonexempt employees, scheduled hours and hourly pay can be reduced unless “reporting time” pay is required under state or local regulations. While exempt employees must be compensated for any weeks in which some work is performed. Exempt employees are not required to be paid for a week in which they perform no work.

A company may also have pay obligations covered under contractual agreements such as an employment contract or Collective Bargaining Agreement.

What is the CARES ACT -Employee Payroll Tax Credit for Employee Retention?

Companies are not eligible for this tax credit if they receive the Paycheck Protection loan.

Credit available to any employer:

  • Carrying on a business in 2020
  • Had its operations fully or partially suspended due to Covid-19 or had a decline of at least 50% in gross receipts as compared to the same calendar quarter in the prior year.

Amount of credit is 50% of “qualified” wages up to $10,000 (max credit $5,000) per employee paid through 12/31/2020

  • Qualified wages mean:
    • Employers with >100 FTEs
      • wages paid to employees not performing services due to COVID-19-related circumstances (either suspension of operations or reduction in gross receipts)
    • Employers with <100 FTEs
        • all employee wages paid
  • Includes employer’s “properly allocable” qualified health plan expenses
  • Excludes wages taken into account under paid sick/family leave (FFCRA) (those that receive a 100% credit)

How do I receive the Employee Payroll Tax Credit for Employee Retention through Prestige?

Once you have elected to receive the Employee Payroll Tax Credit for Employee Retention, a line item will appear on your payroll invoice as CARES Act Employee Retention Credit. Contact your Payroll Specialist or Human Resource Business Partner for guidance regarding the Employee Payroll Tax Credit for Employee Retention.

Note: If you direct Prestige to file for the Employee Retention Tax Credit, you will generally be ineligible to receive an SBA loan under the Paycheck Protection Program.

What is the CARES ACT– Deferral of Employer Share of Social Security Tax?

Employers may defer payment of their portion of Social Security taxes.

Payment schedule for deferred taxes:

  • 50% due 12/31/2021
  • 50% due 12/31/2022

Employers that received the SBA Paycheck Protection Loans that were forgiven are not eligible for this deferral.  The amount of the deferral will not be known until June 30, 2021.

May I supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?

If your employee chooses to use existing leave, you have provided, yes; otherwise, no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including Federal employees. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings.

However, you are not required to permit an employee to use existing paid leave to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. Further, you may not claim, and will not receive a tax credit, for such supplemental amounts.

If I want to pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can I do so and claim a tax credit for the entire amount paid to them?

You may pay your employees in excess of FFCRA requirements. But you cannot claim and will not receive a tax credit for those amounts in excess of the FFCRA’s statutory limits.

Paycheck Protection Program Loan Application requires a payroll report, is there any issue if an eligible borrower contracts with a Professional Employer Organization (PEO) to process payroll and report payroll taxes?

The SBA recognizes that eligible borrowers who use PEOs or similar payroll providers are required under some state registration laws to report wage and other data on the Employer Identification Number (EIN) of the PEO or other payroll provider. In these cases, payroll documentation provided by the payroll provider that indicates the amount of wages and payroll taxes reported to the IRS by the payroll provider for the borrower’s employees will be considered acceptable PPP loan payroll documentation. Relevant information from a Schedule R (Form 941), Allocation Schedule for Aggregate Form 941 Filers, attached to the PEO’s or other payroll provider’s Form 941, Employer’s Quarterly Federal Tax Return, should be used if it is available; otherwise, the eligible borrower should obtain a statement from the payroll provider documenting the amount of wages and payroll taxes. In addition, employees of the eligible borrower will not be considered employees of the eligible borrower’s payroll provider or PEO.

Will there be any issues receiving our payroll package from Prestige during the New York State on Pause Executive Order?

Although there is a lockdown order in place for New York State, it will be “Business as usual” for Prestige. Payroll packages will be delivered as normal unless you require an alternative method. Please direct requests or questions to your Payroll Specialist.

How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?

A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.
If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

When calculating pay due to employees, must overtime hours be included?

Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week. However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

Multiemployer/Collective Bargaining

I am an employer that is part of a multiemployer collective bargaining agreement, may I satisfy my obligations under the Emergency Family and Medical Leave Expansion Act through contributions to a multiemployer fund, plan, or program?

You may satisfy your obligations under the Emergency Family and Medical Leave Expansion Act by making contributions to a multiemployer fund, plan, or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the amount of paid family and medical leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.

Are contributions to a multiemployer fund, plan, or other program the only way an employer that is part of a multiemployer collective bargaining agreement may comply with the paid leave requirements of the FFCRA?

No. Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provide that, consistent with its bargaining obligations and collective bargaining agreement, an employer may satisfy its legal obligations under both Acts by making appropriate contributions to such a fund, plan, or other program based on the paid leave owed to each employee. However, the employer may satisfy its obligations under both Acts by other means, provided they are consistent with its bargaining obligations and collective bargaining agreement.

Workplace Safety

My employee alleges they contracted COVID-19 while at work. Will this result in a compensable workers’ compensation claim?

This depends. If the employee is a health care worker or a first responder, the answer is likely yes (subject to variations in state law). For other categories of employees, a compensable workers’ compensation claim is possible, but the analysis would be very fact specific. Absent state legislation, an employee seeking workers’ compensation benefits for a coronavirus infection will still have to provide medical evidence to support the claim.

What is the best way for employers to disinfect the workplace if they have reason to be believe (or actual knowledge) that their office has been exposed COVID-19?

Based on guidance put out by OSHA, we recommend that so long as employers are routinely cleaning high-touch areas, there is no need to perform special cleaning upon learning that an asymptomatic employee has tested positive for COVID-19.  Employers should only undertake the below cleaning if a symptomatic employee was present at the job site within 48 hours of testing positive. For further information on this topic, the CDC has issued Environmental Cleaning and Disinfection Recommendations.

What if an employee appears to have flu-like symptoms?

All employees should be made aware to stay home if they are feeling ill or exhibiting flu-like symptoms. The employee should remain home until their fever (temperature of 100 degrees) is gone for a minimum of 24 hours. Employers are permitted to ask an employee exhibiting symptoms of COVID-19 to seek medical attention and get tested for COVID19. For employees who arrive to work ill or become sick while at work, the CDC recommends that the employee should promptly separate themselves from other workers and return home until their fever is gone for at least 24 hours, without the use of fever-reducing medications. An employer may also require workers showing signs of COVID-19 to leave the office and return home.

If one of our employees is quarantined, what information can we share with our employees?

If an employer has received confirmation that an employee has contracted COVID-19, the employers should inform fellow employees of their possible exposure to COVID-19 in the workplace. It is important to note that employers should not disclose to co-workers the identity of the quarantined employee because confidentiality requirements under federal law, such as the Americans with Disabilities Act (ADA), or state law, such as California’s Confidentiality of Medical Information Act (CMIA), may apply.

What guidance can I give employees who commute and take mass transit to work?

Any employee who takes mass transit to work should use hand sanitizer or regularly wash their hands with soap and water for a minimum of 20 seconds once they arrive at work. The employee should also avoid touching their noses, mouths or eyes and cover any coughing or sneezing with either a tissue or elbow. Avoiding mass transit while sick is also guidance to provide to employees.

What guidance can I give my employees who typically travel to client appointments and worksites?

Nonessential travel being limited or avoided during a pandemic is best practice for employee’s health, welfare and safety.

Are there rules that can be imposed to prohibit an employee from traveling on their personal time?

When seeking to limit personal travel by employees, employer’s ability to control the employee’s off-duty travel may be restricted by state and local laws. In an effort to limit the risk, employers may require prior knowledge of any travel plans to an area affected by COVID-19. Employees should also be aware that their return to the work office may be prohibited until they have gone through the incubation period for COVID-19. Lastly, provide your employees with the most up-to-date information on the areas affected by COVID-19.

Layoffs, Furloughs & Business Closures

Do employers have an obligation to provide notice under the federal WARN Act if we are forced to suspend operations due to the coronavirus and its aftermath?

Yes, if your company is covered by the Worker Adjustment and Retraining Notification (WARN) Act. The federal WARN Act imposes a notice obligation on covered employers (those with 100 or more full-time employees) who implement a “plant closing” or “mass layoff” in certain situations, even when they are forced to do so for economic reasons. It is important to keep in mind that these quoted terms are defined under WARN’s regulations, and that they are not intended to cover every single layoff or plant closing.

Employers also should consider state mini-WARN acts, as well as state, county, and local laws and ordinances that may require notices for certain workforce reductions or changes.

Furlough or Terminate, what should I do?

Generally, Furlough or temporary layoff is used with the understanding that the employee is recalled back to work if business conditions improve. Furlough status can be used to continue benefits or offer the employee COBRA while keeping the employee status active.

Terminations should be used when an employer is less certain that improved business conditions will allow the employee to be recalled. Benefits are typically terminated with a permanent lay off.

Please reach out to either your Payroll Specialist or Human Resource Business Partner to discuss your options in detail.

How will it work when we have furloughed employees and they claim unemployment? How will they get the additional $600?

An employee on furlough can apply for unemployment insurance. The additional $600 of unemployment insurance funded by the CARES Act will be added automatically by the states. If an employee has an existing unemployment claim open, there is nothing that the employees need to do to receive it. ­

Can an employer furlough or terminate an H-1B worker?

An employer cannot furlough foreign national employees who are on H-1B work visas. If an H-1B worker is terminated before the end date listed on their H-1B Approval Notice, the employer must withdraw their H-1Bs with USCIS to avoid claims for back pay. In addition, the employer is responsible for providing terminated H-1B workers with return transportation to their home country.