Disclaimer: The opinions herein do not reflect those of CU*NorthWest. CU*NorthWest and its affiliates disclaim any and all liability pertaining to this webinar clip. It is made available as a public service in an effort share information on the ongoing global pandemic with our community. NAVIGATING THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) Thursday, April 2, 2020 Guest Speaker 8:15 am PST Angela Hayes Senior Legal Counsel Email questions to elizabeth.evans@cu-northwest.com
Welcome Host Mark Mazenko CU*Northwest EVP, Market Development Client Owner Advocate Elizabeth Evans CU*Northwest Business Development Moderator Terri Johnson CU*Northwest Marketing
Professional Experience • Joined Associated Industries in January 2009. • Practice area included Civil Litigation, Trust & Estate Dispute Litigation, Guardianships and Medical Negligence Defense. • Registered nurse Guest Speaker • Licensed in both Washington and Idaho Angela Hayes Senior Legal Counsel • Member of the Washington State Society of Health Care Attorneys, the American Health Lawyers Association and the American Association of Nurse Attorneys
Disclaimer • Training information is provided for general informational purposes only and is not and should not be considered legal advice, nor does it establish an attorney client relationship between Associated Industries or its attorneys and any attendee or company. • Where specific issues arise, attendees should seek legal advice from a licensed employment law practitioner regarding the particular facts and circumstances of the matter at issue. • The law changes rapidly and the regulations and interpretative guidance of the FFCRA is under development. These materials contain general information only and are current through April 1, 2020.
Agenda • Brief overview of the FFCRA paid leave provisions • Emergency Paid Sick Leave Act (EPSL) • Emergency Family and Medical Leave Expansion Act (EFMLA) • Key Guidance from the DOL on significant implementation questions • IRS Guidance for tax credits
OVERVIEW OF FFCRA AND PAID LEAVE PROVISIONS
HR 6201 – Families First Coronavirus Response Act (FFCRA) Timeline • HR 6201 Introduced on March 11 • Passed by the House on March 14 • “Technical Corrections” introduced on March 17 • Passed by the Senate on March 18 • Signed by President Trump on March 18 • Effective date of April 1, 2020 • Provisions we are discussing today sunset on December 31, 2020
FFCRA Final Law • Law contains broad range of provisions • Appropriations • Nutrition Waivers • Emergency Family and Medical Leave Expansion Act (EFMLA) • Emergency Unemployment Insurance Stabilization and Access Act of 2020 • Emergency Paid Sick Leave Act (EPSL) • Health Provisions • Tax Credits for Paid Sick and Paid Family Medical Leave • Budgetary Effects
Recap of Provisions of FFCRA • EPSL and EFMLA are the two leave provisions of FFCRA • Covered Employers subject to the paid leave provisions of EPSL and EFMLA : • Private employers with fewer than 500 employees (throughout US) • Includes full time, part time, temporary, day labor, employees on leave; NOT independent contractors • Employee count that exists at time employee seeks to take leave (so coverage may change over time as employer grows or shrinks) • Public agencies of any size • Federal, state government; political subdivisions; schools • EPSL and EFMLA sunset on December 31, 2020
EPSL recap • “Eligible employee”: Full time, part time, temporary, seasonal, staffing company/day laborers from agencies • Eligible for EPSL benefits from day one of employment; no other criteria • Full time employee eligible for up to 80 hours of paid leave for qualifying EPSL reason • Full time = employee regularly scheduled to work 40 or more hours per week • Part time employee eligible for the number of hours the employee works, on average, over a 2-week period • Part time = any employee who is not “full time” • Variable work schedule – calculate average number of hours per day over 6-month period • EPSL does not carry over (sunsets on 12/31/20); not paid out on separation
6 qualifying reasons for EPSL Employee is unable to work or telework for one of the following reasons: 1. Employee is subject to a gvt. quarantine or isolation order related to COVID19 (includes “shelter in place” orders) 2. Employee is advised by health care provider to self-quarantine because of COVID19 3. Employee experiencing symptoms of COVID19 and is seeking a medical diagnosis 4. Employee is caring for an individual subject to gvt quarantine order or advised by health care provider to self-quarantine due to concerns related to COVID 19 5. Employee is caring for a son/daughter under age 18 whose school or place of care is closed, or childcare provider is unavailable, due to COVID19 precaution 6. The employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services (catch all provision)
EPSL payment • Leave taken for EPSL Reasons 1/2/3: 100% of regular rate or pay; max $511 per day ($5110 total) • Leave taken for EPSL Reasons 4/5/6: Two-thirds of employee’s regular rate of pay, max $200 per day ($2000 in total) • Regular rate of pay = incudes commissions and piece rate compensation; tips included in calculation too if employer takes a tip credit toward payment of minimum wage for FLSA tipped employees (no tip credit in WA, so tips are not included in the regular rate calculation) • Employer must pay employee for hours the employee would normally have been scheduled to work – including OT (i.e., if employee scheduled to work 50 hours in a week, employee’s EPSL would be 50 hours for that week, but OT premium not included in regular rate calculation)
Use of EPSL leave; interaction with other leave • Employer MUST allow employee to use EPSL leave first if desired • Employer cannot require employee to use accrued leave under an employer- provided policy first • Leave that an employer provided before April 1 st does not count against EPSL requirements or entitlements • Leave/leave payments provided to an employee prior to April 1, are not eligible for federal tax credit
EFMLA Recap • Which employers are covered? • A private employer with fewer than 500 employees (“snapshot in time”) • “20 or more calendar weeks” provision of “classic” FMLA does not apply • No 75-mile requirement for EFMLA • A public agency of any size (state/fed gvt.; schools; political subdivisions) • Which employees are eligible? • Any full-time or part-time employee that has been on the employer’s payroll for 30 calendar days prior to the need for leave • The “classic” FMLA eligibility criteria [12 months/1250 hours/75-mile requirements] DO NOT APPLY to this EFMLA qualifying reason • “Classic” FMLA employers may be dealing with 2 different eligibility criteria
EFMLA Single qualifying reason • SINGLE QUALIFYING REASON FOR EFMLA: • When the employee is unable to work or telework due to the need to care for employee’s son or daughter under age 18 whose school or place of care has been closed or the childcare provider of such son or daughter is unavailable, due to a public health emergency specifically relating to COVID 19. • DOL interpretive guidance clarified that “child” (under both EPSL and EFMLA) also includes a child 18 years or older with a mental or physical disability who is incapable of self care due to the disability. • EFMLA may overlap with EPSL reason #5 • Employee may (but is not required to) use available EPSL for income during first 2 weeks of unpaid EFMLA
EFMLA payment provisions • Employee entitled to up to 12 weeks for EFMLA (minus any other FMLA leave time the employee has already taken in their leave year) • Weeks 1-2 are unpaid (unless receiving payment under different source, such as EPSL or employer-provided benefit like PTO); • Weeks 3-12 are paid at 2/3 employee regular rate of pay for the number of hours the employee typically works each week ; capped at $200 per day, $10,000 total • EFMLA does not provide additional weeks of FMLA leave – it provides an additional qualifying reason for leave and broadens the scope of employers who are covered by the emergency provisions. • Health insurance to continue during leave on same terms and conditions
Job protection and restoration • Employee is entitled to return to the same or equivalent position they held at the time leave commenced • Job restoration also required with EPSL • Employers with fewer than 25 employees may be excused from job restoration requirements where employee takes leave due to school closure/child-care needs if all the following are met: • Employee’s position no longer exists following leave due to operational changes caused by public health emergency; • Employer has made reasonable efforts to restore employee to an equivalent position at end of leave; and • Employer makes “reasonable efforts” to contact a displaced employee for up to one year after displacement if an equivalent position becomes available
DOL ISSUES GUIDANCE
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