Paid Leave Policy for COVID-19 and More

 In Small Business Legal Help
COVID-19 Policies + Updates

It’s time to communicate with employees on your emergency paid leave policies!

How are you communicating your new Paid Leave Policy to your employees?  I know, you are drowning with information overload.  We all are.  However, as employers, you will not be able to claim ignorance come April 18, 2020, when the DOL begins enforcing your paid leave obligations under the Families First Coronavirus Response Act (Act).  It’s time to get your paid leave policy prepared and communicated to your employees!  Time, but you don’t have time because you need money to help get you through this financial crisis.  No worries right because the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was passed.  There are still some worries.  For example, a host of questions:

  • Which SBA loan is best for you and your business?
  • What are lenders looking for?
  • Will you qualify?
  • How much can you borrow?

Check out this guide from the U.S. Chamber of Commerce (click HERE).  Then, what about those tax credits again for emergency paid leave?  Oh yes, they are still in play.  Plus, the Department of Labor (DOL) just can’t help itself and issued additional Question and Answers (Q+A) last Thursday and again over the weekend on Saturday.  Here’s the link for the DOLs Q+A: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.  A lot of your questions can be answered by the DOLs Q+A, so bookmark this link!  

Another Free Webinar This Week With a CPA

Last week, Spencer Phillips and I hosted two free webinars about your questions with emergency paid leave. Check out the recordings of both of these webinars:

This week’s webinar we have a CPA, John Briggs, joining us!

Seats are limited so register early HERE.

 

We’ve tried to make it easy and affordable for you to be compliant with Model COVID-19 Policy Forms you can order from us HERE.

DOL’s Additional Guidance Employers Need to Know to Prepare Your Paid Leave Policy

  • Documentation required for emergency paid leave is not defined, but left up to the IRS.
  • Intermittent leave only allowed if the employee needs to care for a child.
  • Paid leave not required if the business closes worksite.
  • The exemption applies to employers with fewer than 50 employees only if the leave is to care for a child.
  • Employees can only take up to 12 weeks of FMLA, which includes leave taken under the emergency FMLA.
  • Two weeks of emergency paid sick leave can be taken in addition to 12 weeks of FMLA.
  • Health Care Providers and Emergency Responders and pretty much anyone who works with them are excluded from protection under the Act.

What Documentation Is Required For Emergency Paid Leave?

This, unfortunately, is still not clear like it was on Friday!  The DOL summarized that an employer must require employees to provide appropriate documentation in support of the paid leave.  Last Thursday, the DOL specified examples of such documentation and then on Saturday retracted the specific examples.  Instead, the DOL says that if you intend to apply for tax credits, then you should retain appropriate documentation.  Further, it advises you to consult with the IRS for the applicable forms, instructions, and information for the procedures that must be followed and any needed substantiation to be retained to support the credit.  You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

However, if the reason for the leave is to care for a child due to COVID-19, then the documentation could be a copy of the notice posted on a government, school, or daycare website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.  Right now, your paid leave policy should include a statement that emergency paid leave will not be provided without sufficient documentation.

Intermittent Paid Leave Allowed Only To Care For Child!

There are two components for intermittent paid leave to be allowed for COVID-19 reasons:

  1. Paid leave related to COVID-19 is allowed to be taken intermittently only if the employee’s child’s school or place of care is closed, or the child care provider is unavailable; and
  2. The employer must agree to the intermittent leave.

For example, if the employer and the employee agree, then the employee may take emergency FMLA on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while the employee’s child is at home because the child’s school or place of care is closed, or the child care provider is unavailable, due to COVID-19 reasons, for the duration of the leave.  Thus, your paid leave policy should include that intermittent leave will only be granted in these circumstances.

No Paid Leave If You Close The Business (even Temporarily)

If you cease business operations before or after April 1, 2020, then employees DO NOT qualify for any kind of emergency paid leave.  This is true whether you close the business or worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.  Even if you close the business while an employee is already on emergency paid leave, the employer pays for such leave up to the closing date of the business.  As of the closing date, the employee is no longer eligible for emergency paid leave.  You should still send out your paid leave policy even if your business is currently shut down so your employees who are not currently working understand the paid leave policy when you do re-open.  The paid leave policy is good from April 1 – December 31, 2020.

How Do You Plan to Tell Your Employees About Your New Emergency Paid Leave Policy?

If you are a small employer with less than 50 employees, then you have never been required to provide paid leave or implement any kind of paid leave policy.  Don’t be left in the dark.  Find out what written policies are appropriate for your type of business and get those new written policies distributed to your employees ASAP.  At the same time, send out the DOLs notification poster which you are required to do!  Emergency paid leave is the law and takes effect this Wednesday, April 1, 2020, but you will have until April 18th to get your policies put in place so you can say, “Yes, I’m compliant!”  Please face reality and get on this now.  If you have any questions, we can help.  We are available to prepare the written policies you need so let’s talk soon!  Below are helpful links of resources for employers.

We’ve tried to make it easy and affordable for you to be compliant with Model COVID-19 Policy Forms you can order from us HERE.

Links to a Variety of COVID-19 Resources

DOL Wage & Hour Question and Answers: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

EEOC webinar March 27 to answer questions: https://www1.eeoc.gov//eeoc/newsroom/release/3-23-20.cfm?renderforprint=1

DOL Coronavirus Resources: https://www.dol.gov/coronavirus

DOL Online Dialogue:  https://www.dol.gov/newsroom/releases/whd/whd20200325

DOL Fact Sheet ffcra-employer-paid-leave: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

Utah Division of Workforce Services: https://jobs.utah.gov/covid19/uifaqemployers.pdf

SBA disaster loan application: https://disasterloan.sba.gov/ela/

Employer Guidance from the U.S. Chamber of Commerce:  https://www.uschamber.com/sites/default/files/guidance_for_employers_to_plan_and_respond_to_the_coronavirus_031620.pdf

Join us Wednesday to sort through your questions!  

Stay hopeful.  Take it one day at a time.  We are here for you at a socially safe distance, of course! You didn’t start your business to see it fail and Dana Ball has made it easy and affordable to protect your business.

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