COVID-19 PAID LEAVE-RELATED LAWS

Velissa R. ChapaLegal Counsel to Aaron Demerson

Commissioner Representing EmployersTexas Workforce Commission

ONE THING TO NOTE

Note: This is a continuation of the Medical Leave-Related Laws presentation from 9/17/20.

To view previously recorded sessions and Q&A: https://twc.texas.gov/news/efte/lunchtime_live_FAQs.html

THE LIST OF MEDICALLEAVE LAWS

• Americans With Disabilities Act (ADA)

• Family Medical Leave Act (FMLA)

• Pregnancy Discrimination Act (PDA)

• Workers’ Compensation (WC)

• Families First Coronavirus Response Act (FFCRA)*• Emergency Paid Sick Leave Act (EPSLA)

WHAT WAS ADDRESSEDIN PART 1?

• Americans With Disabilities Act (ADA)

• Family Medical Leave Act (FMLA)

• Pregnancy Discrimination Act (PDA)

• Workers’ Compensation (WC)

• Families First Coronavirus Response Act (FFCRA)*• Emergency Paid Sick Leave Act (EPSLA)

WHAT ARE WEADDRESSING IN PART 2?

• Americans With Disabilities Act (ADA)

• Family Medical Leave Act (FMLA)

• Pregnancy Discrimination Act (PDA)

• Workers’ Compensation (WC)

• Families First Coronavirus Response Act (FFCRA)• Emergency Paid Sick Leave Act (EPSLA)• Emergency Family and Medical Leave Expansion Act

(EFMLEA)

PART 1 VS PART 2:WHAT’S THE DIFFERENCE?

Part 1 addressed medical leave-related laws,paid or unpaid, that were in effect beforeCOVID-19.

Part 2 addresses paid leave-related laws (notnecessarily medical), that are in place as a resultof COVID-19.

TODAY’S FOCUS:

The Families First Coronavirus Response Act

(FFCRA)

FFCRA: WHAT IS IT?

FFCRA is a federal law that requires employers to provide job-protected, paid leave to employees who qualify for such leave.

FFCRA: THE BASICS

Two Relevant Components of FFCRA:• Emergency Paid Sick Leave Act (EPSLA)• Emergency Family and Medical Leave Expansion

Act (EFMLEA)Effective dates: 4/1/2020 – 12/31/2020One-time use only. Once employee uses leave, it does not reset.Paid leave is in addition to any other right or benefitEnforced by Department of Labor (https://www.dol.gov/)

THRESHOLDS FOR COVERAGE

FFCRA applies to:• Private employers with less

than 500 employees• Includes nonprofits

• Public employers

WHO COUNTS AS AN“EMPLOYEE?”

• Full-time and Part-Time employees, Employees on leave

• Employees of integrated enterprise

• Does not include:

• employees working outside the United States, U.S. territories, or D.C.,

• independent contractors

• When do you start the count? When the employee leave is initiated.

FFCRA Paid Leave vs. Company PTO

Employers cannot require employees to use company

PTO before providing FFCRA pay.

FFCRA Paid Leave & Health Insurance

Employers should maintain health insurance benefits on employees taking

FFCRA leave.Employee still responsible for paying

respective portion of insurance

FFCRA & Business Closures

FFCRA applies when work is available.

If no work available due to a permanent or temporary layoff (furlough), reduced hours, or shutdown, then FFCRA leave is not applicable.

Employee on FFCRA leave and business shuts down? FFCRA entitlement ends, but employers should be aware of perceptions of retaliation

FFCRA BREAKDOWN

Two Relevant Components of FFCRA:•Emergency Paid Sick Leave Act(EPSLA)

•Emergency Family and Medical LeaveExpansion Act (EFMLEA)

EMERGENCY PAID SICKLEAVE ACT (EPSLA)

Basics:• 6 qualifying COVID-19 related reasons trigger EPSLA• EPSLA entitles employee to paid leave over a 2-week period

• Full-time employees: up to 80 hours based on employee schedule• Part-time employees: based # of hours they work, over a 2-week period

on average

• All employees eligible, regardless of tenure• Employee’s health insurance benefits continue during leave time• Does not apply if employee can telework

EPSLA – 6 QUALIFYINGREASONS FOR PAID LEAVE

“An employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

• (1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

• (2) has been advised by a health care provider to self-quarantine related to COVID-19;

• (3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis;• (4) is caring for an individual subject to an order described in (1) or self-

quarantine as described in (2);• (5) is caring for a child whose school or place of care is closed (or child care

provider is unavailable) for reasons related to COVID-19; or• (6) is experiencing any other substantially-similar condition specified by the

Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.”

Source: %

EPSLA – 6 QUALIFYINGREASONS FOR PAID LEAVE

(PART 2)“An employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

• (1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (this includes shelter-in-place or stay-at-home orders)

• (2) has been advised by a health care provider to self-quarantine related to COVID-19;

• (3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

Calculation of Pay for reasons 1-3: employees taking leave are entitled to up to 80 hours of pay at 100% of their rate of pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

Source: %

EPSLA – 6 QUALIFYINGREASONS FOR PAID LEAVE

(PART 3)“An employee qualifies for paid sick time if the employee is unable to work (or telework) due to a need for leave because the employee:

• (4) is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);

• (5) is caring for a child whose school or place of care is closed (or child careprovider is unavailable) for reasons related to COVID-19; or

• (6) is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.”

Calculation of Pay for reasons 4-6: pay at 2/3 their regular rate or 2/3 the applicable min. wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

Note: Reason 5 connects with EFMLEA (more on that soon)

Source: %

EMERGENCY FAMILY AND MEDICALLEAVE EXPANSION ACT (EFMLEA)

Only 1 reason for leave under EFMLEA:

EFMLEA is for employees who cannot work or telework because they must care for their own child (under 18 or 18+ if disabled), whose school or place

of care is closed (or child care provider is unavailable), due to COVID-19 related reasons

EMERGENCY FAMILY AND MEDICALLEAVE EXPANSION ACT (EFMLEA)

(PART 2)• Provides up to 12 workweeks of leave

• Initial 2 weeks/10 days unpaid (employee can use PTO or the 80 hours under EPSLA (Reason 5), to cover that time)

• Remainder of 10 weeks paid at 2/3 employee’s regular rate of pay

• Not more than $200/day or $10,000 total

• Employee must have been employed for at least 30 calendar days to be eligible

• Employee can be part-time or full-time

• Applies to private employers (including non-profits) with less than 500 employees

• Applies to public agencies (certain federal employees may be excluded)

• Interplay w/ FMLA: This is a new reason for leave; it does not add to the 12 weeks of FMLA leave an employee may be entitled to receive.

FFCRA & REMOTELEARNING

School is “closed” on days where child cannot attend school in person

Only remote learning: school is closed

Optional: school is open

Hybrid: school is open on days child can attend in person

FFCRA - REQUIRED NOTICETO EMPLOYEES

Required Notice:https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

• Must post in a conspicuous place on the premises, or can share via email, direct mail, or company intranet.

• Not required to post in other languages, but more available at https://www.dol.gov/agencies/whd/pandemic.

• Do not need to share notice with recently laid-off individuals or job applicants

Quick Benefit Tips from DOL: https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/Quick%20Tip%20Poster%20FFCRA.pdf

FFCRA - RECORDKEEPING

• “Regardless of whether you grant or deny a request for paid sick leave or expanded family and medical leave, you must document the following:

• The name of your employee requesting leave;

• The date(s) for which leave is requested;

• The reason for leave; and

• A statement from the employee that he or she is unable to work because of the reason.” provide as soon as practicable.

Source: *, Question 15

FFCRA – RECORDKEEPING

(PART 2)“If your employee requests leave because he or she is subject to a quarantine or isolation order or to care for an individual subject to such an order, you should additionally document the name of the government entity that issued the order.

If your employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, you should additionally document the name of the health care provider who gave advice.”

Source: *, Question 15

FFCRA – RECORDKEEPING

(PART 3)“If your employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, you must also document:

• The name of the child being cared for;

• The name of the school, place of care, or child care provider that has closed or become unavailable; and

• A statement from the employee that no other suitable person is available to care for the child.”

Source: *, Question 15

FFCRA TAX CREDITS

• Employers may receive a tax credit for 100% of qualified leave wages paid under FFCRA

• Only covers qualifying wages under FFCRA. No credits for employers who pay more than required amount.

• Tax credits also extend to amounts paid or incurred to maintain health insurance coverage

• To get the credit, employers must keep documentation to substantiate the need to pay employee under FFCRA

• Contact IRS for more information on procedures to claim the credit.

• https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-paid-sick-and-paid-family-leave-overview#:~:text=The%20Families%20First%20Coronavirus%20Response,leave%20related%20to%20COVID%2D19.

FFCRA SMALL BUSINESSEXEMPTION

Employer may qualify for the exemption if:• Has under 50 employees• The employee’s leave is to care for his or her child whose school or place of care if closed, and• Business viability is jeopardized. For more information on this point, see questions 58 & 59 in

Department of Labor’s FFCRA Q&A: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

• Employers do not apply for it; instead, per DOL FAQ #4: “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.

• You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.”

FFCRA: SPECIALEXCLUSIONS

Employees excluded from FFCRA:• Health Care Providers • Emergency Responders

FFCRA EXCLUSION: HEALTH CARE PROVIDER

Q: Who is a “health care provider” who may be excluded from paid sick leave and/or expanded family and medical leave?

A: A health care provider includes two groups:

(1) Anyone who is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for FMLA purposes;

(2) Any other person employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. This includes employees who provide direct diagnostic, preventive, treatment, or other patient care services, such as nurses, nurse assistants, and medical technicians. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services. Finally, employees who do not provide direct heath care services to a patient but are otherwise integrated into and necessary to the provision those services—for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition—are health care providers.

Source: *, Question 56

FFCRA EXCLUSION: HEALTH CARE PROVIDER

(PART 2)“A person is not a health care provider merely because his or her employer provides health care services or because he or she provides a service that affects the provision of health care services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers are not health care providers, even if they work at a hospital of a similar health care facility.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA. For example, an employer may decide to exempt these employees from leave for caring for a family member, but choose to provide them paid sick leave in the case of their own COVID-19 illness.”

Source: *, Question 56

FFCRA EXCLUSION: EMERGENCY RESPONDER

Who is an emergency responder?

“Anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or

national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel,

emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and

persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities

employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual whom the highest official of a State or territory, including the

District of Columbia, determines is an emergency responder necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.”

Source: *, Question 57

FFCRA: FAQS

Department of Labor has over 100 frequently asked questions about the FFCRA:https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

THANK YOU FOR YOUR ATTENTION!

Questions on the FFCRA? Contact your local Department of Labor Office

SOURCE KEY• Source: https://www.dol.gov/agencies/whd/pandemic/ffcra-

questionsSymbol: *

• Source: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leaveSymbol: %