Employers’ Common Questions During the COVID19 Pandemic

I asked a good friend of ours who specializes in labor law for her input about the tidal wave of issues facing pediatric practices. Her law firm has compiled some really great Q/A results and there are a few items in where she considers pediatric practices (her father was a pediatrician!). She actually updated twice today already.

From the Paul Frank + Collins P.C. Labor and Employment Team:

Employers’ Common Questions During the COVID19 Pandemic

Q. As an employer, what should I know about COVID19?

A. Use common sense. And check state and federal government updates daily.

  • Employees who are having symptoms should stay home.
  • Employees who can work from home should do so.
  • To the extent possible, create physical space between workers who are present in
  • the workplace.
  • Have meetings by videoconferencing or phone instead of in person.
  • Stop all discretionary travel.
  • Hands should be washed often and well.
  • More cleaning and disinfecting should be done in the workspace.
  • Consult the CDC guidelines for more ways to avoid the spread of the virus. The
  • CDC guidelines can help you make informed decisions.
  • https://www.cdc.gov/coronavirus/2019-ncov/downloads/workplace-school-andhome-guidance.pdf
  • Pay attention to state and federal guidelines re business closures, changes in
  • hours, and designation of “essential” workers and businesses.
  • Pay attention to the new Families First Coronavirus Response Act (FFCRA),
  • including Division C – Emergency Family and Medical Leave Expansion Act
  • (EFMLEA), Division D – Emergency Unemployment Insurance Stabilization and
  • Access Act (EUISAA), Division E – Emergency Paid Sick Leave Act (EPSA),
  • and Division G – Tax Credits for Paid Sick and Paid Family and Medical Leave,
  • and related state law.

Q. One of my employees recently came back from New York City [or any other place
where there is a lot of COVID19]. There is a lot of COVID19 there. I am worried that she
might have been exposed to the COVID19 virus. Can I tell her to stay home for 2 weeks?

A. Yes, you may ask an employee to stay home and self-quarantine if you have a reasonable basis to believe that the person has been exposed to COVID19. This could include employees who have recently been on a cruise. If you decide to keep the employee out of work, you can and should allow the employee to use his or her paid time off during that time. Or the employee may be eligible for unemployment under the EUISAA.

Q. If an employee is sick and has flu-like symptoms, but their provider has told them
that they don’t need a COVID-19 test, can you ask them to stay home?

A. Yes. And under these circumstances, the employee may be eligible for paid leave under state or new federal law. Whether or not that paid leave is available depends on the size of your company (under 500). If the employee is entitled to paid leave under the new federal law – you must give them that leave PRIOR to requiring them to use any paid leave they have accrued but have not yet used. https://www.dol.gov/whd/healthcare/flu_fmla.htm They can use the federally mandated leave, and then, if that runs out, they can use their employer-provided paid time off.

Q. If an employee is sick and has flu-like symptoms, but their provider has told them
that they don’t need a COVID-19 test, are they covered under the “experiencing
symptoms” reason for paid sick leave?
A. Maybe, but is not clear under the law. The new law covers people who are experiencing
symptoms and “seeking a medical diagnosis.” If they already have a diagnosis that is not
COVID-19, an employer does not need to provide paid sick leave under the new law. As a
practical matter, however, it is probably safest to keep such employees out of the workplace
given the lack of COVID-19 testing. They can use their own accrued paid leave, and an
employer can require them to do so in this latter circumstance. Some employers are choosing to provide additional leave to employees or allowing them to “go negative” into their paid time off banks. This is legal, but also sets a precedent for how other situations may be handled. So, be careful to take it slow. Be conservative about your changes to policy. And if you have a union contract, follow it. An employer cannot unilaterally be more generous than the contract allows, without significant impact to the relationship with the bargaining unit. Contact your labor attorney for further advice.

Q. How much paid time could my employees be entitled to under the new law?
A. For COVID-19 related reasons, employees receive up to 80 hours of paid sick leave and
expanded paid child care leave when employees’ children’s schools are closed or child care
providers are unavailable. If the employee qualifies to use the expanded FMLA time, he or she is eligible to use more paid time: after the initial 10 days (during which they may be eligible for paid sick leave), the employee is entitled to paid leave in an amount not less than 2/3 of the employee’s regular rate of pay, with some caps.

Q. Can I let employees “go negative” into their sick or vacation leave, or Combined
Time Off (CTO)?
A. Under the new paid sick leave law, you do not need to do this, because employees are
entitled to paid time off before they use any of their own CTO or other paid time off provided by the employer. So, you can let them go negative, but you are not required to do so. Remember, though, if you do it for one employee, you should do it for all similarly situated employees. So, if you make that decision, you could limit the amount of time they “borrow.”

Q. What if I have an employee who needs to stay home to take care of a family member
who is having symptoms, or who has been told by a healthcare provider to self-quarantine.
Do I have to pay the employee while he is home?
A. If the employee needs to be home for one of these reasons, you will need to provide him
with the 2 weeks of paid sick time under the new act. You do not need to provide him with paid time for the additional 10 weeks under the expanded FMLA – the payment mechanism there only applies if the employee is home with children in the case of school closure. However, you may still need to provide unpaid FMLA leave if you are a covered employer and the employee’s reason qualifies under the standard FMLA reasons.

Q. What if my employee wants to stay home to care for a child who is not sick, but
whose school or daycare is closed as a result of federal or state mandates?
A. This leave may be covered under state law already. If not, it may now be covered under
the paid sick leave and FMLA portions of the Families First Coronavirus Response Act. Note,
however, that Employers with fewer than 50 employees are eligible for an exemption from the
paid sick leave requirements in cases where the viability of the business is threatened.

Q. So, if my employee does not qualify for state or federal paid leave, and they have no
accrued paid time off, will they be unpaid if they need to be home because they are sick or
their child’s school is closed because of the pandemic?
A. Yes. And they will likely qualify for unemployment compensation.

Q. What if I laid off employees before the new federal law was passed? Do they still get
paid time off?
A. The law applies to employees who need time off between April 2, 2020 and
December 31, 2020. Employees outside of this window may still be covered by state law, and
they can still use their accrued paid time. If they are unpaid, they may be eligible for
unemployment.

Q. What if I shut down completely because of the COVID19 virus?
A. You can do that. Business closure is not one of the reasons that gives rise to family
medical leave or paid sick leave under the new federal law.

Q. What if I am a multi-state employer? What law do I follow?
A. You should follow federal law, and the laws of each state in which you have employees.
Different state laws may impact your workforce differently, depending on the state in which
those employees work.

Q. Does the new Emergency Family Medical Leave Expansion or Emergency Paid Sick
Leave Act apply to an employee who has chosen to self-isolate to avoid exposure?
A. No. To qualify under the EFMLEA, the employee must be absent due to a “qualifying
need relating to a public health emergency,” which is “an emergency with respect to COVID-19 declared by a Federal, State, or local authority.” To qualify under the EPSA, the employee must be: (1) subject to an isolation order from a governmental entity; or (2) advised by a provider to self-quarantine, or must be caring for someone who is subject to one of these
orders/recommendations.

Q. What if we already comply with Vermont’s Earned Sick Time law or some other
state paid leave statute? Do we have to provide additional time?
A. This is in addition to what employers already provide under Vermont’s Earned Sick Time
law, so yes, you need to provide additional time. However, it need not be paid at their full rate of pay if their normal daily wages exceed those specified in the new act. Caps are $511 per day and $200 per day, depending on the reason.

Q. What do we do if we have already sent an employee home for a temporary business
closure?
A. Business closure is not one of the reasons for sick time provided by FFCRA. If
employees are home because of a slow-down or shut-down, they are not eligible for paid sick
time or paid family leave.

Q. We are essential businesses and our employees are essential workers. If someone is
scheduled to work and they do not show up, can I discipline them?
A. Yes. Unless a person is absent for reasons protected by law, he or she can be disciplined
as usual, for failing to show up for a shift or for other performance reasons.

Q. I need to hire more employees to meet the needs of this crisis. Can I require
employees to bring me a doctor’s note that says they have tested negative for COVID19?
A. If there is a legitimate business need to know this information (such as – the person will
be working in an office with other people and could spread the virus because of this contact), you may ask for this physician’s note ONLY AFTER you have made a CONDITIONAL OFFER OF EMPLOYMENT to this person. Even then, remember that tests for COVID19 are in short
supply, so the ability for someone to provide certification of negative test results is small. You
could ask that they get a doctor’s note that they do not have any symptoms presently, but again, that can only be requested after a conditional offer of employment has been made. Note that governmental bodies have asked employers to refrain from asking for doctors’ notes given the strain on provider resources in the current crisis.

Q. Does the new federal paid sick leave requirement apply to small businesses?
A. Yes, the paid sick leave requirement applies to all private employers with less than 500
employees. However, employers with less than 50 employees can apply to the U.S. Department of Labor for an exemption if the requirements would jeopardize the viability of the business as a going concern. We don’t yet know the process for how that would happen. States may require medical or family leave in smaller companies too.

Q. Do I, as an employer, get a tax break for this paid leave?
A. Yes. When employers pay their employees, they are required to withhold from their
employees’ paychecks federal income taxes and the employees’ share of Social Security and
Medicare taxes. The employers then are required to deposit these federal taxes, along with their share of Social Security and Medicare taxes, with the IRS and file quarterly payroll tax returns (Form 941 series) with the IRS. Under the tax credits provisions of Division G of the FFCRA, eligible employers who pay qualifying sick or child-care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child-care leave that they paid, rather than deposit them with the IRS.

The payroll taxes that are available for retention include withheld federal income taxes, the
employee share of Social Security and Medicare taxes and the employer share of Social Security and Medicare taxes with respect to all employees. If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. The details of this new, expedited procedure will be announced next week.

Examples provided by the Federal Department of Labor:

  • If an eligible employer paid $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $5,000 of the $8,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $3,000 on its next regular deposit date.
  • If an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments, and file a request for an accelerated credit for the remaining $2,000. Equivalent child-care leave and sick leave credit amounts are available to self-employed individuals under similar circumstances. These credits will be claimed on their income tax return and will reduce estimated tax payments.

Q. I own a medical practice. Am I required to allow my health care providers to take
enhanced family and medical leave?
A. No. There is a narrow exception (or “opt out”) in Section 3105 of the new law. The law
specifically says that “an employer of an employee who is a health care provider or an
emergency responder” may elect “to exclude such employee” from the application of the
enhanced family medical leave. This provision may allow for an employer to make decisions
based on the needs of the business, when it comes to health care providers or emergency
responders specifically. This would likely not apply to a person who holds an administrative
role in an employer’s business. It is specific to employees who are health care providers or
emergency responders.

Q. What are some of the key takeaways I need from the new Expanded Family and
Medical Leave Act and the new Paid Sick Leave, passed by Congress this March?
A. According to the federal Department of Labor, here are some of the key takeaways:
 The act provided paid sick leave and expanded family and medical leave for
COVID-19 related reasons and created the refundable paid sick leave credit and
the paid child-care leave credit for eligible employers. Eligible employers are
businesses and tax-exempt organizations with fewer than 500 employees that are
required to provide emergency paid sick leave and emergency paid family and
medical leave under the act. Eligible employers will be able to claim these credits
based on qualifying leave they provide between the effective date and Dec. 31,
2020. Equivalent credits are available to self-employed individuals based on
similar circumstances.

Paid Leave
The act provides that employees of eligible employers can receive two weeks (up to 80
hours) of paid sick leave at 100% of the employee’s pay where the employee is unable to
work because the employee is quarantined, and/or experiencing COVID-19 symptoms,
and seeking a medical diagnosis. An employee who is unable to work because of a need
to care for an individual subject to quarantine, to care for a child whose school is closed
or child care provider is unavailable for reasons related to COVID-19, and/or the
employee is experiencing substantially similar conditions as specified by the U.S.
Department of Health and Human Services can receive two weeks (up to 80 hours) of
paid sick leave at 2/3 the employee’s pay. An employee who is unable to work due to a
need to care for a child whose school is closed or child care provider is unavailable for
reasons related to COVID-19, may in some instances receive up to an additional ten
weeks of expanded paid family and medical leave at 2/3 the employee’s pay.

Paid Sick Leave Credit
For an employee who is unable to work because of Coronavirus quarantine or selfquarantine or has Coronavirus symptoms and is seeking a medical diagnosis, eligible employers may receive a refundable sick leave credit for sick leave at the employee’s regular rate of pay, up to $511 per day and $5,110 in the aggregate, for a total of 10 days.

For an employee who is caring for someone with Coronavirus, or is caring for a child because
the child’s school or child care facility is closed, or the child care provider is unavailable due to
the Coronavirus, eligible employers may claim a credit for two-thirds of the employee’s regular
rate of pay, up to $200 per day and $2,000 in the aggregate, for up to 10 days. Eligible
employers are entitled to an additional tax credit determined based on costs to maintain health insurance coverage for the eligible employee during the leave period.

Child Care Leave Credit
In addition to the sick leave credit, for an employee who is unable to work because of a need to care for a child whose school or child-care facility is closed or whose child care provider is
unavailable due to the Coronavirus, eligible employers may receive a refundable child care leave credit. This credit is equal to two-thirds of the employee’s regular pay, capped at $200 per day or $10,000 in the aggregate. Up to 10 weeks of qualifying leave can be counted towards the child-care leave credit. Eligible employers are entitled to an additional tax credit determined based on costs to maintain health insurance coverage for the eligible employee during the leave period.

Small Business Exemption
Small businesses with fewer than 50 employees will be eligible for an exemption from the leave requirements relating to school closings or child care unavailability where the requirements would jeopardize the ability of the business to continue. The exemption will be available on the basis of simple and clear criteria that make it available in circumstances involving jeopardy to the viability of an employer’s business as a going concern. The Department of Labor will provide emergency guidance and rulemaking to clearly articulate this standard.

Non-Enforcement Period
Department of Labor will be issuing a temporary non-enforcement policy that provides a period of time for employers to come into compliance with the act. Under this policy, Department of Labor will not bring an enforcement action against any employer for violations of the act so long as the employer has acted reasonably and in good faith to comply with the act. The Department of Labor will instead focus on compliance assistance during the 30-day period.

Here are some State and Federal Resource Pages for Your Reference:

If you have questions, and need assistance from one of our Labor and Employment Attorneys,
please call 802-658-2311.
www.pfclaw.com

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Still trying to wrap my brain around the concept of our staff taking the next 10wks off to stay home with kids getting online education while we pay them 2/3rds of there typical wages.
Can easily see MD/NP/PA being excluded from this. Are RN/MA also excluded as healthcare responders? Billing and front desk harder to classify this way. This is going to be huge issue for staffing a medical practice. Other small business only decision is to fire before 4/2/20, since they are being closed anyway state by state. Hope folks want to return to same job in a few months. Fingers crossed at some point this legislation makes sense to me. I guess we’ll quickly find out who the non team players are in our employment.

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Chip. Thanks for posting. This is the most concise version of current information on topic that I have seen.

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I’m going to try to gather more questions for the webinar on Thursday, but here’s one followup:

I’ve had a lot of people ask me, “Will pediatric offices be exempt from this list or not?”

Answer:

Dear Chip: Short Answer: some yes, some no.

SEC. 3105. SPECIAL RULE FOR HEALTH CARE PROVIDERS
AND EMERGENCY RESPONDERS.

An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of the provisions in the amendments made under of section 3102 of this Act.

Section 3102 is the expanded Family and Medical Leave. This opt out does not apply to the Paid Sick Leave portion of the bill.

That is the short answer.

Thanks for response. My thinking is employer of health care provider can elect to exclude employees critical to function of office from the 10wk portion of stay at home. This would include RN/MA as well as front desk and schedulers because our office would have difficulty functioning without their services. Also agree that does not apply to the sick leave portion for COVID19 for 2wks out. Our payroll tax is around $8,000 per 2wk pay period, so we could cover 5 employees making $20/hr ($1,600/pay period) for the 2wks. Will be interesting to see the paperwork involved and turn around time. Paycor now has the reporting codes built into the system.
Kateri has noon teleconference with our law firm and will be working on these issues as well.

What is the financial difference between furlouging a provider or employee and laying off. In either scenario, does an employee continue health insurance.

I think a practice should think long and hard before fighting too hard to exempt themselves or employees from this program. Although there are exceptions, by definition we’re talking about people who are either sick or exposed to someone who is sick - bring that into your office and you’ll suddenly go from having a few people out to EVERYONE out, including (and particularly) physicians and NPs.

I have a few clients whose docs got hit. About to talk to one now who has been out of the office already for 12 days. That does more to kill your practice than sending staff home.

What you don’t want is for one of your front desk people to tell you at lunch, “My throat has been sore since last night!” [real example, you know who you are! :slight_smile:]

Actually, health care providers and emergency responders may also be exempted from the paid sick leave portion (Section 5102(a). https://www.congress.gov/bill/116th-congress/house-bill/6201/text

Also - note that it says “Except that an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee…”

The employer is not a health care provider; the employer’s employee may or may not be. I think you can make a case that physicians and PNPs are HCPs. But an LPN? A medical records clerk?

The best way I heard this answered (who is a healthcare provider) was from a webinar this morning. They stated it was by definition according to how the original FMLA law was written. As the “new” law is a temporary amendment to the original FMLA law.
So…I googled, “FMLA definition of healthcare provider.” See link for answer.

https://www.law.cornell.edu/cfr/text/29/825.125

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I followed up with Kerin Stackpole (the author of the original content above) and she shared with me a presentation she gave today. It’s updated through today (03/25/20). There’s some great stuff in here!

Holy smokes - already updated from an hour ago! Here’s the new link below.

COVID-19 Presentation 3.25.20.pdf (362.3 KB)

She added:

"I am also attaching a chart created by FORBES on March 20, 2020. It provides a pretty good graphic summary of the two main portions of the Act, regarding FMLA expansion and new Paid Leave. It is a good “cheat sheet” for employers to have a basic idea of the requirements. "

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Does anyone know if the stimulus or other COVID related policy changes have made gifting to employees impacted by the crisis less tax burdensome to them and to the employer? Specifically, if we choose to gift groceries or other essential supplies to families who have lost income or lost school meal benefits, is this covered under employee gift values for the year under tax law? Is there any way around that?

If you (as the employer) are purchasing groceries for your employees (as opposed to giving them extra cash or Kroger gift cards), many such gifts fit the IRS definition of de minimis. The purchase is a qualified business expense from the company. The gift does not require the employee to pay income tax or FICA, and the employer does not have to pay the employer share of FICA. https://www.irs.gov/publications/p15b#en_US_2020_publink1000193660

If you personally (with post-tax dollars) buy groceries or other needed supplies for your staff as individuals, the gift tax exemption is $15,000 per year for 2020. That is, you may purchase up to $15,000 in items and gift them to anyone in need. The recipient does not pay taxes. You have already paid taxes since you are buying these with post tax dollars. https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes

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