Webinar #3 - H/R Related Questions and Answers

Chip & Paulie's Webinars
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Note, there are plenty of crossover SBA/PPP related questions in here!

Questions Answered During the Seminar:

**Q#** **Question** **Answer**
1 So as long as we can cover the 75%+ threshold, we should not be dinged with having to pay back? 75% and the same number of employees over all. If you are paying 80% but it's all going to your managers because you boosted their salaries 20% "to spend the money."
2 If our current cash flow provides us a cushion and we do not need immediate cash is a line of credit or disaster SBA loan better as a back up in addition to the PPP loan? Almost certainly, a disaster SBA loan is better than a bank unsecured LOC. It will have longer repayment terms and much lower interest.
3 Provider means any healthcare worker? Depends on the context.
4 For the FMLA act.... does the credit only apply against the emplyer portion of fICA or against the entire payment (FWH,FICA,MCARE)... what happens if the credit exceeds the paymnet due? ESL and eFMLA leave payments are credited against ALL your payroll taxes - federal withholding, both halves of SS, and both halves of Medicare.
5 one of our support staff member's daughter had filed for & is getting unemployment and days she will now be getting an additional $600 per week up to 4 months, doesnt have to pay rent (not sure why)... the medical Assistant's (who are not working their full hrs right now) I'm sure were listening...could this be true- it sounds crazy. is it better to just lay some of them off then right now? If you are seriously overstaffed, you can lay them off. If you have work for them to do, keep them.
6 Aren’t all our employees exempted? If you mean "Exempted from FFRCA," then yes, you (as the employer) may opt to exempt your practice. If you mean "Exempt under the FLSA," that's a different question.
7 can a billing company be considered "employee payroll"? I pay a huge amount and if they were in house it would be considered payroll. It is *possible* they would qualify in the "1099 staff provider" category.
8 If they have sick and vacation PTO can we consider that in the 80 hours? No. Emergency sick leave is given DESPITE additional PTO they might have accrued, and you CANNOT make them use their PTO before you permit them to use their E.S.L.
9 Are there any exceptions to FFCRA for really small practices? (less than 10 employees) None that I am aware of - just 50/500.
10 I have an employee who is staying at home with child by her choice. And other parent is also at home. She does not want to come in to work even part time. Do I have to pay the efmla? Not if you exercise the <50 employees and/or health care provider exemption.
11 Does the paid sick leave for a parent of a closed school cover 2 weeks or the entire time of the closure- LA’s closures just got extended until April 30th! Paid SICK LEAVE only ever covers 2 weeks (10 days/80 hours). Paid EFMLA covers up to 12 weeks, the first 2 weeks of which would run concurrently with the ESL.
12 I thought doctor's office were not madated to do FFCRA? That is correct. However, they are still allowed to do it, if they wish. We are providing the info for those offices who want to provide it to their staff.
13 i heard that Exempt doesn’t mean just salaried. It means that the person has some control and decision making in the business. That is correct. You cannot salary a receptionist, for example.
14 Does the employer file for partial unemployment for them, or does the employee do it for themselves? Usually employee does himself, unless your state has rules abou mass layoffs/cuts (e.g. you're expected to report if you lay off more than 10 or 50 people at a time)
15 we are reducing our staff to 50% (20 hours per week). I am assuming we pay them their 20 hours and then file for partial unemployment for them for the other 20 hours? Yes, virtually all states now recognize partial unemployment for COVID downturns.
16 Is it still true that if the employee who is home with a child is able to telework, then they do not qualify? Yes.
17 Can someone apply for unemployment if they are working 20 hours when they usually work 36 hours? Yes. Most states recognize partial unemployment.
18 I keep getting different information from an attorney and SOAPM. Also some comments on here… I have a 10 employee practice. Are we required to do the FMLA throiugh this new policy? I have my front staff out due to pregnancy and had letters from MD before all of this changed. I understand the Paid Sick Leave— but what about the next 10 weeks? Are we still mandated to do it due to size or a medical office? You are not required to do ESL/EFMLA as a medical office. We are including the discussion so that folks who want to do it will have good information to make their practice's policy.
19 Can we apply for the FFCRA and the PPP at the same time? One says to give people time off and one says we need to pay full time. You can use them together. I'll be covering this in a slide tonight.
20 For employees that were furloghed-they are getting a huge increase in salary being on employment (from $15 to $23 per hour). When they refuse to come back how do we handle the SBA requirments to re-hire them? You will find plenty of other unemployed people in your area who will be desperate for a job. People prefer jobs over welfare in every study I've ever seen, even with those wage gaps.
21 What if the 8 weeks of PPP isn't enough and this lasts longer? You'll need a medium and long term plan as well. You should consider getting another loan, an EIDL loan, a local/regional business loan, or a private loan from your bank.

Open Questions:

22 Agree with Steven above... we were told that pediatric practices are exempt from the paid sick leave and FMLA requirement because we are a healthcare provider.... ? Is this not true?
23 am I wrong to assume that because of item #56 on the DOL FAQ that none of our employees apply to this ffcra?
24 can the new sick leave and new fmla be an intermittent application or does it have to be in one block?
25 can we just reduce hours and reduce the salary ? for salaried employees
26 Can we require the employees use any unused PTO/Vacation/Sick Leave BEFORE they become eligible to receive the additional pay under the FFCRA?
27 check with an attorney, but we have been told we will be able to claim exemption as healthcare providers based on #56 from the DOL FAQ sheet. See ffcra questions website from Dept of Labor, #56. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
28 does it apply to groups under 20 employees?... I can’t find an answer to that
30 FFCRA Question - We had APRN hospitalized 3/25 for COVID symptoms but tested negative, and is now out of work through April. Is she covered by the 2 week paid leave even though tested negative?
31 how can you pay employee hourly wages when there’s no work for them?
32 how do I document with the Department of Labor that I do not need to follow the FMLA due to less then 50 employees?
33 I was informed healthcare providers could be excluded from act by two attorneys. We would like to participate with sick leave, but not the extended leave
34 If I employ a new employee on 4/1, can the employee tell me on 4/2 that they qualify for FMLA? How many days must they be employed to apply and get this benefit
35 If our medical staff can do telework while on self-quarantine (or other reasons for paid sick leave), do they still qualify for this paid sick leave?
36 If we have employees work from home, do we have to subsidize costs for their computers, phones or other items needed for them to function from home?
37 If we normally provide 80 hours of sick leave, nothing to do with COVID-19, would this now require ADDITIONAL or extended sick leave
38 if you provide a daycare option then they don't qualify, I allow my staff to bring their school age kids to work with them. Decreases the number of kids that may need daycare!
39 Is FMLA a paid leave? Sorry to have to ask...
40 So if a practice has <50 employees and one of them wants to take paid sick leave under FFCRA the practice does not have to pay them? Is that correct?
41 so if my practice has only 2 employees including myself as the physician, i can request exemption from the FFCRA?
42 there has been talk of physician owners also being able to claim unemployment , is this true?
43 We have posted this notice to our employees in the communal break room. Are we obligated to “offer” this to eligible employees or wait for them to bring it to us?
44 We heard the medical practices are exempt from FFCRA. Does that then mean that we CANNOT provide these benefits/get tax credit or that we can OPT in or out?
45 what about an employee that “chooses” not to come to work out of fear of COVID even if we have PPE? Do they have to quit? Do I have to pay them?
46 What are practices doing for patients who ask for letters to stay home from work to care for their child they are worried might get Covid-19 from daycare? This is a grey zone. Concerned people will be asking to stay home out of concern but no true medical need.
47 What if an employee had to take a medical leave with a note from their doctor?
48 What if employee can work 50% time. How do we calculate 2/3 pay?
49 what if employees all work a changing number of hours per week even prior to covid? No one in my office is salaried, not even the doctors
50 What if I as an employer, not their physician, requests an employee stay home because of exposure to a person with COVID symptoms?
51 what if n employee decided to apply for unemployment benefits, can you still rehire them and qualify for the loan forgiveness.
52 what is I have an employee who requested leave for this reason on 3/31? day before this was effective?
53 What is the best practice if an employee wants to take the childcare leave before an exemption is filed?
54 what to do with staff members who want to be layed offf to get unemployment
55 Should I use the “work share” unemployment option while waiting for SBA? (Not sure if work share is federal or Maryland specific? If instead of layoffs we reduce each class of employee hours the same percent, state will pay difference as it would for unemployment (if reduce hours 30% the state will pay 30% unemployment) — lowering risk nurses will leave us for pop up hospitals and testing centers
56 I have a nurse who keeps calling out sick (i think because she is afraid to come to work but wont admit it). do I have to pay her if I have a noted from her provider saying she does not have covid?
57 Dr Berman can you please clarify on furloughs; our office has temporarily laid people off but also reduced hours for most staff and they are collecting unemployment on "reduced hours" . How would this impact the payback of the PPP loan? We plan on bringing everyone back by June 30
58 75% threshold is based on from what date to what date? And same # of employees from date of the loan or from what date?
59 Does it make sense to keep all employees even if (for some) their work responsibilities have diminished significantly in order to maximize the PPP loan forgiveness?
60 Under the ffcra, is there an avenue to submit an exemption request for practices less than 50 employees for the child-related leave?
61 Can an employee self quarantine and be eligible for sick leave due to a high health risk in themselves and be paid and their salary be forgiven? I have a couple of employees that are immune compromised and want to stay home to decrease their exposure. What do I do with them?
62 If our employee asked for leave per her medical provider in mid March, is this still applicable? We have documentation
63 What if your partner advises you to self-quarantine, even though they are not your PCP?
64 I have an employee out with Covid, I am going to pay her, but can I make her use her PTO time for this [I know that sounds cruel but other medical industries are doing this]
65 What about the Exemption filing about the 80 hours sick time
66 What if the leave began before 4/1 but continues after 4/1
67 But we are pediatricians, so if WE tell an employee (who's daughter has a fever and bad cough) that we want her to quarantine for a week wouldl that qualify? We are not HER doctor, but we are a doctor.
68 Additionally, the employee went part time due to her class schedule, do I pay her F/t or what she would have made in “normal times”
69 What if spouse is home and not working and home but employee wants to stay home on FFCRA?
70 If we treat an employees’ child and they are being tested for COVID can we certify the employee out of work (in quarantine) while we are waiting for test results?
71 does FFCRA apply for part-time and per diem employees?
72 What if I as an employer, not their physician, requests an employee stay home because of exposure to a person with COVID symptoms?
73 what about part time employees, are they eligible for FFCRA
74 Any chance you could (1) Provide a sample exemption letter (as it applies to most of us on this webinar), and (2) let us know where/how to file it?
75 Is there any reason a practice with more than 50 employees shouldn’t exercise the exemption for the updated FMLA rules?
76 Is there a threshold of hours below which someone can apply for unemployment?
77 how does the intermittent leave apply if one hs an employee (including staff pediatrician)that is paid hourly?
78 what about what we should consider full time. a FTE is considered 32 hours. We need to keep same head count of employees. Usually my employees work 40 hours per week. at 75%of payroll- is that 75% of their normal 40 hours, or of the 32. I would assume of their normal hours but wanted to make sure
79 Can’t you also pay your staff for 8 hours even if you send them home after 5 to maintain full payroll.
80 Wha tis the benefit of converting them from exempt to non-exempt?
81 If all of our employees are paid hourly and we reduce their hours every week; with no guaranteed hours, and they’re still working reduced hours do we have to pay for the hours their no longer working due to covid
82 Can a contracted employee be given a amendment that states "temporary" or is it required to have an end date?
83 FFCRA Question - We had APRN hospitalized 3/25 for COVID symptoms but tested negative, and is now out of work through April. Is she covered by the 2 week paid leave even though tested negative for COVID?
84 If my office manager is salaried, can I switch her to reduced hourly rate until things improve?
85 Do we need to provide our staff with letters saying they are essential employees since our State has a shelter in place order issued by the Govenor?
86 Do employees have to give you a reasonable notice for utilizing FFCRA or can they just say I am using this starting tomorrow?
87 2 of my employees are well settled with their spouses and have preferred to take time off to give the others time to work..do I have to get them back in the work force to be able to count them for ppp
88 What do we do with employees that do not want to come to work due to COVID even though we have PPE? Do we have to pay them? Do they quit? If I offer them work from home and they refuse then do they quit?
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A bunch of people asked (questions 22, 23, 27, 28, 32, 33, 40, 41, 44, 60, 65, 75): Why are you covering all these FFCRA questions? Doctors’ offices are exempt!

To be clear: medical practices MAY EXEMPT ALL THEIR EMPLOYEES from both emergency sick leave and emergency FMLA at the discretion of the practice. This is the choice of the practice. In fact, you can be over 50 employees and still opt out. You can choose to participate in one but not the other.

Some practices may choose to offer this; we had the discussion as a courtesy to those who are considering including it. Irrespective of what you choose (question 33), make it clear to your employees what choice you’ve made, by updating your employee handbook and policies/procedures for sick leave/PTO/unpaid leave. Just hanging a poster they may or may not see is not adequate communication.

Many folks asked, “How do I file an exception with the DOL? We’re <50 employees.” There’s no guidance about that yet, so we don’t have a sample letter (question 74.) Typically DOL “Prove this is a hardship” exemptions are essays you write explaining why implementing the rules would affect your business adversely; you keep them on file yourself, on hand only in case an employee challenges you for not following FLSA or FMLA rules.

Personally, I think the easier exemption prong to choose is “we’re a medical practice.” You have a lot less to prove (“We’re medical, end of story”) rather than the exact percentage of revenue you would be impacted by permitting your small business to be governed by these needs.

More FFCRA questions (note, the answers to all these questions are predicated on you opting to offer ESL and eFMLA)

|26|Can we require the employees use any unused PTO/Vacation/Sick Leave BEFORE they become eligible to receive the additional pay under the FFCRA?|
|37|If we normally provide 80 hours of sick leave, nothing to do with COVID-19, would this now require ADDITIONAL or extended sick leave|

The law makes very clear that employees must be permitted to use emergency paid sick leave FIRST before they use their PTO. Yes, this is additional sick leave.

|71|does FFCRA apply for part-time and per diem employees?|
|73|what about part time employees, are they eligible for FFCRA|

Yes, part time employees are eligible for both ESL and eFMLA.

|34|If I employ a new employee on 4/1, can the employee tell me on 4/2 that they qualify for FMLA?

There’s a 30 day waiting period for new employees before they are covered by eFMLA.

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Kerin Stackpole amended this answer:

A: If you mean “Exempted from FFRCA,” then likely yes (see definitions of the opt out above), you (as the employer) may opt to exempt your practice. If you mean “Exempt under the FLSA,” that’s a different question altogether and the answer is likely no.

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#8

Kerin Stackpole adds:

The paid leave is in ADDITION to any accrued pay the employee may already have.

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Kerin Stackpole adds:

If work is available (in person or telework), and the employee is available to do it, they are not qualified for the paid leave under FFCRA. If it is literally their stated choice not to come to work, if work is avaible, the leave is not available to them, and they could actually be fired for insubordination. You could also offer to provide this person with “intermittent” paid family and medical leave (Reason 5 under FFCRA). The employee could work some and take some intermittent leave to care for the child. Alternatively, if you are an employer with <50 employees, you could use that exemption. You could also use the health care provider exemption if it applies to this person (which it likely does).

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I have regrouped Kerin Stackpole’s answers into one organized response. The following is insight, but not legal guidance, from Kerin Stackpole. Please consult your attorney and accountants! Typos either belong to the original questions or me during transcription.

Our friends at PracticeWell quietly offered to pick up any expense we incur from engaging an attorney for multiple hours, so please thank them (@andrew, @Kathy.Chebib).

3 Provider means any healthcare worker?

A: Depends on the context. For example: For Purposes of Advice to Self-Quarantine . One qualifying need for paid sick leave under FFCRA is if employees have been “advised by a health care provider” to self-quarantine due to concerns related to the coronavirus. For these purposes, “health care provider” means “a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.”

By contrast, for purposes of Exclusion from FFCRA Leave (i.e. “healthcare opt out”), it can mean:

An employer of an employee who is a health care provider may elect to exclude such employees from the FFCRA leave requirements. For these purposes, “health care provider” is defined broadly, as: Anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. This is not even the full list of potential exceptions relating to healthcare.

5 one of our support staff member’s daughter had filed for & is getting unemployment and days she will now be getting an additional $600 per week up to 4 months, doesnt have to pay rent (not sure why)… the medical Assistant’s (who are not working their full hrs right now) I’m sure were listening…could this be true- it sounds crazy. is it better to just lay some of them off then right now?

A: It is true that for approximately 4 months, there is an additional 600 dollars available to supplement the level of unemployment pay made by the state. This is short term, and will not be paid immediately. State claims take some time to process, so there may be delays in employees tapping into these UI benefits. Plus, they vary from state to state.

7 It is possible they would qualify in the “1099 staff provider” category.

Kerin Stackpole would like to amend this answer:

I doubt it. Employee payroll relates to the legal definition of “employee,” as defined under state and federal wage and hour laws. The tests vary state to state. Generally, if it is a separate company, the answer is no. That would be a business to business transaction and not part of “payroll.” If it is a person who qualifies as an employee for the purposes of your state’s wage and hour laws, or unemployment laws, the answer may be yes. An example would be a part-time bookkeeper who only shows up 1 day every two weeks. A person, though, to whom you pay a flat amount and to whom you issue a 1099, I think the answer is no.

Chip adds: I confirmed this same response with a CPA as well.

9 Are there any exceptions to FFCRA for really small practices? (less than 10 employees)

A: There are exceptions, depending on the part of the law that applies. For instance, Employers who have 50 or fewer employees may seek an exemption if complying with the Act would “jeopardize the viability of the business as a going concern.” To be entitled to this exemption, an authorized officer of the business has to determine that:
• (i) the requested leave would result in expenses exceeding revenues and cause the business to cease operating at a minimal capacity;
• (ii) absence of employees requesting leave would entail a substantial risk to the business because of specialized skills, knowledge of the business, or responsibilities; or
• (iii) there are not sufficient workers able, willing, qualified and available to perform the services, and the services are needed for the business to operate at a minimal capacity.

The employer has to seek an exemption, and has to be able to demonstrate the above-factors.

There is also an exception to the rule that an employer who gives the expanded Family and Medical Leave (Reason Number 5 under FFCRA), for employers with 25 or fewer employees:

For employers with less than 25 employees, there is no obligation to return an employee to the same or equivalent position at the expiration of the leave period under certain circumstances. No reinstatement is required if:
• The position does not exist at the expiration of the leave because there are changes in operating conditions due to COVID-19;

Example: the company eliminated the position held because of business conditions changing.
AND
• The employer makes a reasonable effort to restore the employee to an equivalent position within one year of the employee’s leave;
AND
• If reasonable efforts to reinstate the employee fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available within a year after his or her leave ended.

10 I have an employee who is staying at home with child by her choice. And other parent is also at home. She does not want to come in to work even part time. Do I have to pay the efmla?

A: Not if you exercise the <50 employees and/or health care provider exemption.

If work is available (in person or telework), and the employee is available to do it, they are not qualified for the paid leave under FFCRA. If it is literally their stated choice not to come to work, if work is avaible, the leave is not available to them, and they could actually be fired for insubordination. You could also offer to provide this person with “intermittent” paid family and medical leave (Reason 5 under FFCRA). The employee could work some and take some intermittent leave to care for the child. Alternatively, if you are an employer with <50 employees, you could use that exemption. You could also use the health care provider exemption if it applies to this person (which it likely does).

11 Does the paid sick leave for a parent of a closed school cover 2 weeks or the entire time of the closure- LA’s closures just got extended until April 30th!

A: Paid SICK LEAVE only ever covers 2 weeks (10 days/80 hours). For Reason 5 under FFCRA (leave to care for a child whose school is closed), is paid out at 2/3 the employee’s regular pay. The first 10 days can be unpaid, or the employee can use the 2 weeks of PAID TIME OFF (at 2/3) to cover those first 10 days. Then the employee could have as much as up to 10 weeks of additional family and medical leave at 2/3 pay. Note that regular FMLA rules apply. So, if your business measures FMLA annually, starting in January, and this person has already used 2 weeks of FMLA for some elective surgery during that measuring year, the employee would actually only have 2 weeks of paid sick leave, and an additional 8 weeks of FMLA at 2/3.

12 I thought doctor’s office were not mandated to do FFCRA?

A: There is an “opt out” for health care provider’s and the definition is pretty broad. An employer can choose NOT to opt out and to be covered by the law. It is at the option of the practice.

13 I heard that Exempt doesn’t mean just salaried. It means that the person has some control and decision making in the business.

A: Under the Fair Labor Standards Act, and most state wage and hour laws, a person is exempt if: a) they are paid at least certain amount of money each week (the current rate is $684 per week) and they “perform exempt duties.” There are lots of types of exemptions, but the usual ones are the executive, administrative, and professional exemptions. These each have very specific standards that must be met. Often, people think the “administrative” exemption covers all office staff. Not true. To be an administrative exempt employee, a person must “regularly exercise independent judgment and discretion on matters of significance.” Generally, someone like a receptionist is not going to meet both criterion. Here is a link to more information about wage and hour exemptions: https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-flsa#8

14 Does the employer file for partial unemployment for them, or does the employee do it for themselves?

A: Employees are responsible for filing, but this could vary from state to state. You should check with your local Department of Labor. Some states do have laws that require an employer to “WARN” the government about “mass layoffs” but the thresholds on those layoffs is usually more than 50 people within a certain period of time, and many of those laws have an exception for “natural disasters” and “unforeseen circumstances.” This pandemic qualifies under many of those laws. Check with your local DOL to be sure.

15 we are reducing our staff to 50% (20 hours per week). I am assuming we pay them their 20 hours and then file for partial unemployment for them for the other 20 hours?

A: Yes, virtually all states now recognize partial unemployment for COVID downturns. The employees themselves need to file for unemployment. You will be responsible for verification.

16 Is it still true that if the employee who is home with a child is able to telework, then they do not qualify?

A: Yes. Remember too that an employee can use the paid leave or expanded FMLA “intermittently.” That is an option for keeping good employees, who need to balance family obligations.

18 I keep getting different information from an attorney and SOAPM. Also some comments on here… I have a 10 employee practice. Are we required to do the FMLA throiugh this new policy? I have my front staff out due to pregnancy and had letters from MD before all of this changed. I understand the Paid Sick Leave— but what about the next 10 weeks? Are we still mandated to do it due to size or a medical office?

A: You are not required to do ESL/EFMLA as a medical office. You could “opt out” of the new law. You would still, however, have to honor FMLA claims made prior to the COVID situation, such as the pregnancy that you indicated. That employee is out for a Non-Covid related reason and the new law would not apply to her/him. We are including the discussion so that folks who want to do it will have good information to make their practice’s policy.

19 Can we apply for the FFCRA and the PPP at the same time? One says to give people time off and one says we need to pay full time.

A: Yes, they are different laws. One creates certain rights, and the other is more about payments and loans. You can use them together. I’ll be covering this in a slide tonight.

20 For employees that were furloughed-they are getting a huge increase in salary being on employment (from $15 to $23 per hour). When they refuse to come back how do we handle the SBA requirements to re-hire them?

A: You will find plenty of other unemployed people in your area who will be desperate for a job. People prefer jobs over welfare in every study I’ve ever seen, even with those wage gaps. If someone does refuse reinstatement, make sure you make a record of that fact. It is a voluntary quit and they may not be entitled to further benefit, and such paperwork can be provided with other payroll documentation.

22 we were told that pediatric practices are exempt from the paid sick leave and FMLA requirement because we are a healthcare provider… ? Is this not true?

A: See above – there is an exemption from the paid sick leave and the expanded FMLA leave. But not regular FMLA. Regular FMLA still applies to any business that has 50 or more employees within a 75 mile radius.

23 am I wrong to assume that because of item #56 on the DOL FAQ that none of our employees apply to this ffcra?

A: The definition for a “health care provider” for the purposes of the “opt out” is very broad. So, most employees of pediatric practices, regardless of size, can be opted out of paid family leave and expanded FMLA leave mandates.

24 can the new sick leave and new fmla be an intermittent application or does it have to be in one block?

A: They can be taken intermittently. Track the time taken and time worked. Remember that taking the time intermittently will spread it over a longer calendar period.

25 can we just reduce hours and reduce the salary for salaried employees?

A: There are minimums for payment of “exempt” employees. So, if you take the pay for an exempt employee below the minimums, you may convert and otherwise “exempt” employee to an hourly employee. That is ok, but you need to do it in a minimum of one week increments. And if you do this, make sure that person is at least making minimum wage in your state, and that the person is tracking his/her time and being paid time and one half for any hours over 40 that he/she works.

26 Can we require the employees use any unused PTO/Vacation/Sick Leave BEFORE they become eligible to receive the additional pay under the FFCRA?

A: No. The Paid Leave is in addition to any accrued paid time that they have available to them.

28 does it apply to groups under 20 employees?.. I can’t find an answer to that

A: Generally yes. Three are some small business exemptions – see above.

30 FFCRA Question - We had APRN hospitalized 3/25 for COVID symptoms but tested negative, and is now out of work through April. Is she covered by the 2 week paid leave even though tested negative?
A: If he/she fits one of the 6 covered reasons, yes. So, if he/she was told to self-quarantine by a health care provider, he/she would be entitled to take the leave, even with a negative test. Get a note from the treating health care provider and see why he/she will be out that long. If it fits the criterion, the answer is that the paid leave is available. If not, it is not.

31 how can you pay employee hourly wages when there’s no work for them?

A: An employer can always be more generous than the law requires.

32 how do I document with the Department of Labor that I do not need to follow the FMLA due to less then 50 employees?

A: The reasons for the small business exemption are very specific and mostly involve financial records, because you must show financial hardship. See above re small business exceptions.

33 I was informed healthcare providers could be excluded from act by two attorneys. We would like to participate with sick leave, but not the extended leave

A: Be careful about this strategy. It could tend to discriminate against people with caregiving responsibilities, which often skews based on sex and age. Choosing one over the other could be used as evidence of unlawful discrimination. Also, remember that regular FMLA still does apply. So, if you have an employee who is covered by regular FMLA, that reason would still allow for unpaid leave and job reinstatement.

34 If I employ a new employee on 4/1, can the employee tell me on 4/2 that they qualify for FMLA? How many days must they be employed to apply and get this benefit

A: No, they must have worked for you for at least 30 days before the need for leave arises.

35 If our medical staff can do telework while on self-quarantine (or other reasons for paid sick leave), do they still qualify for this paid sick leave?

A: No. Only if they are unable to work or telework.

36 If we have employees work from home, do we have to subsidize costs for their computers, phones or other items needed for them to function from home?

A: You are not required to do so by law, but an employer may choose to do so.

**37 If we normally provide 80 hours of sick leave, nothing to do with COVID-19, would this now require ADDITIONAL or extended sick leave? **

A: Yes. The leave and pay required under the new laws is in addition to any other accrued leave employees have already.

38 if you provide a daycare option then they don’t qualify, I allow my staff to bring their school age kids to work with them.

A: Decreases the number of kids that may need daycare!

39 Is FMLA a paid leave? Sorry to have to ask…

A: See above. Usually no, but 2 weeks at 2/3 pay is available for Reason 5 under FFCRA, plus up to 10 weeks of additional leave, also at 2/3 regular

40 So if a practice has <50 employees and one of them wants to take paid sick leave under FFCRA the practice does not have to pay them? Is that correct?

A: You must meet the criterion for the “small business exemption. See above.

41 so if my practice has only 2 employees including myself as the physician, i can request exemption from the FFCRA?

A: Yes, you may.

42 there has been talk of physician owners also being able to claim unemployment , is this true?

A: It is possible, as a small business owner to receive unemployment, but you must comply with numerous other UI standards. It is not automatic just because you are a small business owner. If you are able to work or telework, you may not qualify.

43 We have posted this notice to our employees in the communal break room. Are we obligated to “offer” this to eligible employees or wait for them to bring it to us?

A: If you have delivered the poster to everyone – in person and/or by email, then you have done what you needed to do.

44 We heard the medical practices are exempt from FFCRA. Does that then mean that we CANNOT provide these benefits/get tax credit or that we can OPT in or out?

A: You can opt out. But you can always choose not to, also. But you cannot do it on a case by case basis. Make a decision and stick with it for all employees.

45 what about an employee that “chooses” not to come to work out of fear of COVID even if we have PPE? Do they have to quit? Do I have to pay them?

A: If an employee has concerns about safety – address it. Make sure you do everything reasonable to take care of it. If they then refuse to work, you could fire the employee. Before you do that – check your offer letters for any notice periods; check any contracts for termination provisions; and check your employee handbook, to make sure that you have not missed an obligation you might otherwise have.

46 What are practices doing for patients who ask for letters to stay home from work to care for their child they are worried might get Covid-19 from daycare?

A: This is a grey zone. Concerned people will be asking to stay home out of concern but no true medical need. The FFCRA only applies is the child’s daycare or school is CLOSED. So if it is open, the law will not apply for Reason Number 5 of FFCRA. As a general rule, if the child is able to go to daycare – you will not have a reason to write the note. If the child has a compromised immune system and you have legitimate medical reasons to have that child home, you can provide support for that reason. However, it may qualify for the regular FMLA, but not the FFCRA.

48 What if employee can work 50% time. How do we calculate 2/3 pay?

A: Pay them 2/3 of their regular rate for the number hours they work.

49 what if employees all work a changing number of hours per week even prior to covid? No one in my office is salaried, not even the doctors

A: Run a 2 week average, and that can be the rate that you use as your base rate. If the variation is over a longer period of time, you can go out up to a month to catch the average.

50 What if I as an employer, not their physician, requests an employee stay home because of exposure to a person with COVID symptoms?

A: The employer is making that person UNABLE to work. That person will be eligible for unemployment.

51 what if an employee decided to apply for unemployment benefits, can you still rehire them and qualify for the loan forgiveness.

A: I believe so, yes.

52 what is I have an employee who requested leave for this reason on 3/31? day before this was effective?

A: The law did not apply prior to April 1st. You can choose to give them the leave anyway, for that day or you can allow them to use some accrued but unused leave to cover it. If, after April 1, the person qualifies for the leave, you should comply.

53 What is the best practice if an employee wants to take the childcare leave before an exemption is filed?

A: You should apply the same rule of exemption for all employees. Doing it on a case by case basis can lead to discrimination. Once you invoke the exemption, you could require the person to return, or you could allow them to use their own accrued paid leave to be out of the office.

54 what to do with staff members who want to be layed offf to get unemployment

A: Encourage them to stay, if you value them.

55 Should I use the “work share” unemployment option while waiting for SBA? (Not sure if work share is federal or Maryland specific? If instead of layoffs we reduce each class of employee hours the same percent, state will pay difference as it would for unemployment (if reduce hours 30% the state will pay 30% unemployment) — lowering risk nurses will leave us for pop up hospitals and testing centers

A: This may be a state law specific question. If you mean “intermittent leave, though – and allow 2 employees to do one job, you could do that.

56 I have a nurse who keeps calling out sick (i think because she is afraid to come to work but wont admit it). do I have to pay her if I have a note from her provider saying she does not have covid?

A: She can used any accrued sick leave that she has until it is gone. Then, if she cannot provide medical justification for her absence, she could be terminated involuntarily.

57 Dr Berman can you please clarify on furloughs; our office has temporarily laid people off but also reduced hours for most staff and they are collecting unemployment on “reduced hours” . How would this impact the payback of the PPP loan? We plan on bringing everyone back by June 30

A: The proceeds for PPP can be used for a number of different things, including rent, utilities, etc. If you use it for qualified purposes, it may remain forgivable.

59 Does it make sense to keep all employees even if (for some) their work responsibilities have diminished significantly in order to maximize the PPP loan forgiveness?

A: Yes.

60 Under the ffcra, is there an avenue to submit an exemption request for practices less than 50 employees for the child-related leave?

A: Yes, see above. – Small business exemption.

61 Can an employee self quarantine and be eligible for sick leave due to a high health risk in themselves and be paid and their salary be forgiven? I have a couple of employees that are immune compromised and want to stay home to decrease their exposure. What do I do with them?

A: Get a note from their docs that they need to self-quarantine, and then Reason 2 of FFCRA will apply.

62 If our employee asked for leave per her medical provider in mid March, is this still applicable? We have documentation

A: If your employee is currenly out on FMLA leave for a Non-Covid reason, they can stay status quo. FFCRA does not apply unless it is a COVID-related reason.

63 What if your partner advises you to self-quarantine, even though they are not your PCP?

A: Health Care provider under the statute is a term that includes anyone who normally can sign a medical certification under FMLA. If that preson is a Health Care provider, that is enough. Does not have to be your primary care physician. But you will need to get a note.

64 I have an employee out with Covid, I am going to pay her, but can I make her use her PTO time for this [I know that sounds cruel but other medical industries are doing this]

A: No, FFCRA leave over and above anything they already have accrued.

65 What about the Exemption filing about the 80 hours sick time

A: Process is still being worked out.

66 What if the leave began before 4/1 but continues after 4/1

A: Pre-April 1 leave is not FFCRA covered. The law was not in effect at that time.

67 But we are pediatricians, so if WE tell an employee (who’s daughter has a fever and bad cough) that we want her to quarantine for a week wouldl that qualify? We are not HER doctor, but we are a doctor.

A: You would qualify as a health care provider under the act for this purpose.

69 What if spouse is home and not working and home but employee wants to stay home on FFCRA?

A: FFCRA only applies if they are unable to work or telework. If work is available, it does not aply.

70 If we treat an employees’ child and they are being tested for COVID can we certify the employee out of work (in quarantine) while we are waiting for test results?

A: Sure.

71 does FFCRA apply for part-time and per diem employees?

A: Yes, if they otherwise qualify (i.e. have worked for the employer for at least 30 day.

72 What if I as an employer, not their physician, requests an employee stay home because of exposure to a person with COVID symptoms?

A: That person can be a “health care provider” for purpose of telling someone to quarantine.

74 Any chance you could (1) Provide a sample exemption letter (as it applies to most of us on this webinar), and (2) let us know where/how to file it?

A: Federal DOL will issue them soon.

75 Is there any reason a practice with more than 50 employees shouldn’t exercise the exemption for the updated FMLA rules?

A: It could help with retention over time.

76 Is there a threshold of hours below which someone can apply for unemployment?

A: That is a state by state determination.

78 what about what we should consider full time. a FTE is considered 32 hours. We need to keep same head count of employees. Usually my employees work 40 hours per week. at 75%of payroll- is that 75% of their normal 40 hours, or of the 32. I would assume of their normal hours but wanted to make sure

A: It is judged by a 2 week average of their work.

80 What is the benefit of converting them from exempt to non-exempt?

A: You can lower their pay. Just make sure you pay minimum wage and 1.5 times the regular rate for all hours worked over 40.

83 FFCRA Question - We had APRN hospitalized 3/25 for COVID symptoms but tested negative, and is now out of work through April. Is she covered by the 2 week paid leave even though tested negative for COVID?

A: Likely, yes. The employee was out for a COFI related reason.

84 If my office manager is salaried, can I switch her to reduced hourly rate until things improve?

A: Yes.

85 Do we need to provide our staff with letters saying they are essential employees since our State has a shelter in place order issued by the Govenor?

A: Essential employees are defined by the governor, not the employer.

86 Do employees have to give you a reasonable notice for utilizing FFCRA or can they just say I am using this starting tomorrow?

A: A “reasonableness” standard is applied in each situation.

11

How does an employee taking a voluntary unpaid/benefits included Leave of Absence (Covid high risk person) either before or during PPP 8 week term affect the 75% employee maintenance threshold?

12

Do we HAVE to allow an employee to work from home if their job requires coordinated work with another in-the-office employee?

13

Who determies is telework is appropriate/sufficient

14

The employer, always. An employee can offer to do telework, but only the employer can decide whether it’s appropriate for that job description/role.

That said - what off-site jobs can’t coordinate remotely with an on-site worker? It would help if we knew more about the specific situation.

15

Thanks so much for your answer. So our in-house billing is two people. One of them just decided to stay home and work from home and thinks that is permitted under FRCA. But she is “working” and we are paying her. We are not getting enough work done with her at home.

16

Ahh, that’s sort of a different issue. I would say that, as a rule billing staff, of all pediatric staff, can work remotely with the least fuss (that’s why there are so many successful offsite billing services and not so many successful offsite nurse weighing and measuring services :slight_smile: )

If her productivity was great working from home, would you care where she was, as long as she got the work done?

What does your employee manual say about loafing on the clock? If you have established productivity benchmarks (“we expect you to post X payments per day, send out Y statements”) for in-house work, and she can’t at least approach them while working from home, then that deserves a performance improvement plan.

17

This information was very helpful thank you very much. I wanted to confirm that nothing has been updated since April 5th as far as an exemption. Is the procedure at this time still “Prove this is a hardship” exemptions are essays you write explaining why implementing the rules would affect your business adversely; you keep them on file yourself, on hand only in case an employee challenges you for not following FLSA or FMLA rules".

Thank you,
Paula Kress
Pediatric Associates (Maryland)

18

Question 4 of the current DOL FAQ says:

If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

i.e., nothing new yet.

There has been nothing published yet on claiming the “we are a health care facility” exemption as far as I know.