13 HR Questions For Today’s COVID-19 Environment

As legislation begins to be applied and the COVID-19 guidance continues to be issued, employers are being bombarded with new information daily.  Fahrenheit’s Managing Director Nathan Duet discusses current trends and answers some commonly asked questions related to Human Resource matters under the current COVID-19 environment.

Question 1: Big picture, what are you seeing in the market as it relates to employers and employees? Any trends or is it just “depends”?

• Employee leave requests have not turned out to be the burden that employers feared. Not yet at least.
• Employers are already beginning to think about the challenges they will encounter when they begin to return to “near normal” operations. Getting employees back up to speed and scheduling appear to be the biggest concerns.
• Employers have done a great job of “holding on” – but if the lock downs last much longer I think you will begin to see more drastic actions by more employers.

Question 2: What are the most common questions you are fielding from companies?

• What do I do when an employee comes forward and says they are running a temperature? What should I do to notify other employees and when should I inform them?
• How much medical justification can I request an employee provide when they request leave under the EPSL provision of the FFCRA?
• Should I institute measures such as checking employee temperatures and requiring face masks for my workforce?
• How should I respond to an employee who has underlying medical issues but is not showing any signs of infection – and is concerned about continuing to work or returning to work?

Question 3: As further guidance is being issued related to all the recent legislation, what seems to be the common theme?

• It appears the DOL is trying to strike the right balance between employees who want to access their mandated benefits, and take time off from work, and employers who are trying to hold their business together and need their employees at work.
• It is important for employers to understand the rules that govern the application for paid time off benefits and to keep an eye on the newest developments released by the DOL, because – like many things – the rules sound good on paper but run into real world issues when they are applied in the workplace.

Question 4: Would you revisit the difference in laying off versus furloughing an employee?

• I think furloughs are a more pliable management tool. Furloughs can be used for shorter periods of time and in selected areas to assist with controlling costs. It is common for employers to use furloughs on a rotating basis to spread the “pain” while maintaining a continuing employment relationship with their employees. During furloughs, benefits generally remain intact because the term of the furlough tends to be shorter.
• Layoffs are viewed as a more long-term or permanent action. Employees are in essence “terminated” and there is no known or anticipated return date. In cases where the layoff option is used, it has proven more difficult to get employees to return to work once the employer is in a position to resume operations to some extent.

Question 5: What should an employer consider when choosing furlough versus layoffs, versus just retaining and reducing an employee’s compensation or hours?

• The decision that the employer makes when choosing which action to take depends almost entirely on how management views the short-term business realities.
• If management sees a light at the end of the tunnel and wants to be in a position to reactivate quickly, they are more likely to choose some of the short term options – such as reduction in hours and furloughs – to control short-term costs.
• If, on the other hand, management feels their business interruption will have a more long-term, or even permanent, impact on their business, it is likely that management will opt for longer term options such as reductions in pay or layoffs.
• In either case, it is a delicate balance in what must be done in the short term versus being able to retain a trained and motivated workforce for what will ultimately be a return to normal business. I think management must consider their options carefully and try to remain as agile as possible.

Question 6: Can a 501(c)3 without employees that uses contract management services make use of the PPP loans? Do you have to have your own employees or can the management fees paid to the third party be used?

• Although we haven’t been able to find anything specific to an independent association management company concept, we do know if you are using independent contractors or a temp agency, the answer is NO. However, the SBA clarified if you use a PEO or similar type arrangement, which might be similar to a third-party management company concept.
• Per the SBA PPP FAQ, Question 10: What if an eligible borrower contracts with a third-party payer such as a payroll provider or a Professional Employer Organization (PEO) to process payroll and report payroll taxes?
  • Answer: SBA recognizes that eligible borrowers that use PEOs or similar payroll providers are required under some state registration laws to report wage and other data on the Employer Identification Number (EIN) of the PEO or other payroll provider. In these cases, payroll documentation provided by the payroll provider that indicates the amount of wages and payroll taxes reported to the IRS by the payroll provider for the borrower’s employees will be considered acceptable PPP loan payroll documentation. Relevant information from a Schedule R (Form 941), Allocation Schedule for Aggregate Form 941 Filers, attached to the PEO’s or other payroll provider’s Form 941, Employer’s Quarterly Federal Tax Return, should be used if it is available; otherwise, the eligible borrower should obtain a statement from the payroll provider documenting the amount of wages and payroll taxes. In addition, employees of the eligible borrower will not be considered employees of the eligible borrower’s payroll provider or PEO.
• So answer is as the contract management company if they are considering those employees as theirs or yours? Only one can.

As expected, there continues to be a number of clarifications and further guidance issued related to recent legislation.

Question 7: With respect to the guidance under the  Pandemic Unemployment Assistance Program, the latest guidance continues to change in order to make assessing unemployment insurance benefits easier in two important ways. What were they?

• The federal government’s contribution of $600 per week has been clarified for partial benefit recipients. The guidance indicates that if a PT employee qualifies for a partial UI benefit of as little as $1, they would be eligible for the added $600 payment.
• Individuals who in the past would not have qualified for UI benefits because of the lack of sufficient income history can now qualify. In most states an individual who applies for UI benefits must have at least 5 quarters of earnings in order to qualify. This period of earnings is to ensure that states have collected enough tax revenue for the employee to pay the benefits. Under the newest guidance, this minimum period of earnings has been waived and individuals with less than 5 quarters of earnings can qualify for UI benefits.

With respect to the FAMILY FIRST CORONAVIRUS RESPONSE ACT

ENFORCEMENT
The DOL continues to issue new and clarification guidance on the various aspects of implementing and administering the paid leave provisions under the act. Things are coming into clearer view – and the new guidance provides valuable insight into how the DOL will enforce the requirements on employers.

Question 8: What do they mean by Enforcement? Can you give some details into what those are, could be? And what all this means?

• It is important to understand how serious the DOL is taking enforcement. It is important to remember that for most federal laws of this scale, there is a minimum of six months lead for employers to get ready to comply with the law. Considering the speed of the enactment of the FFCRA, I think the DOL was thinking realistically about the challenges employers would face with compliance. Earlier guidance had indicated that enforcement provisions of the Act would be delayed for at least 30 days. The new guidance revealed that enforcement will commence on April 17, 2020 and will be retroactive to April 1, 2020. Also, please note that the Wage and Hour Division of the DOL has been tasked with enforcement activities.
• Recently the DOL has provided guidance to employees who feel they have been unfairly denied access to the benefits provided under the FFCRA. The guidance directs employees to their local Wage and Hour office to report their concerns. On the bright side, the DOL has also indicated that they will evaluate the severity of employee complaints based on whether the possible employer violation was made in good faith or was it willful. I think they understand that employers are in a tough spot and are trying to comply and may likely make some technical errors, so the issuing of penalties is probably going to be a last resort.

LEAVE GUIDELINES

Question 9: Can an employee qualify for leave to take care for a child other than their own child?

• Leave for this reason is not allowed under the EFMLA – to qualify for this type of leave the care must be for your own child.
• With regards to the EPSL benefits, the eligibility depends. Like the EFMLA leave can be taken because of the closure of a child’s school or place of care due to COVID-19 reasons. However, if the child is subject to quarantine or self-isolation as required by a federal, or state agency, or a medical professional, and you must take care of the child and cannot work or telework, leave is available.

Question 10: Can an employee claim leave benefits while on Worker’s Compensation?

• Employees who are on workers’ compensation or temporary total disability do not qualify for EFMLA or EPSL benefits. If, however, the employee had returned to light duty then becomes unable to work or telework due to a qualifying reason, they may be eligible.

Question 11: Can both parents take EFMLA and/or EPSL simultaneously to care for the same child or children?

• This is an important question for employers who might employ both parents. In this case I will quote the DOL guidance because it is a bit confusing.
  • “You may take paid sick leave or expanded family and medical leave to care for your child only when you need to, and actually are, caring for your child if you are unable to work or telework as a result of providing care. Generally, you do not need to take such leave if a co-parent, co-guardian, or your usual childcare provider is available to provide the care your child needs. “
  • The use of intermittent leave is an option that employers should consider. The DOL makes it clear that if an employee is to use intermittent leave, they can only do so with the approval of their employer.
  • If an employer employs both parents, the creative use of intermittent leave may be the best approach to helping your employees meet their obligations – while not losing both to leave at the same time.

Question 12: Can an employee self-quarantine without any medical intervention and still be qualified for EPSL?

• The DOL has made it clear that individuals cannot isolate themselves because they are afraid of being exposed and still be eligible for paid leave. I think is an effort to prevent individual employees from taking paid time off without proper justification – and is in a way a protection for employers.

Question 13: Medical excuses continue to be a case of much concern and confusion. What new guidance is there?

• In earlier guidance the DOL had indicated that employers could request medical certification when an employee request EPSL for instances involving quarantine or care for COVID-19 related reasons. Recently the DOL has stepped back a bit and an employee need only provide the name of the physician who issued the quarantine order. This leaves some grey areas still to be settled.
• For example, the question of whether an employer can request a medical release from the treating physician prior to an employee returning to work, is still unclear. I believe that the DOL will ultimately allow these releases because they will recognize that employers will have the burden to ensure that anyone who returns to their workplace is free of the virus. Stay tuned for more guidance on this important question.

Due to the rapidly changing regulations and program specifics, some items in this post may have changed since the publication date. Companies should continue to monitor the US Treasury and SBA websites for updates

About the Author

Nathan Duet brings expertise in building sustainable human resources functions within rapidly growing organizations and making strategic adjustments to policies and practices to accommodate an organization’s strategy and development. With nearly 40 years of experience, Nathan collaborates with clients to build a balanced approach to human resources management that facilitates the growth of team members while achieving, and exceeding, organizational objectives. He is skilled in all areas of human resources management including employee relations, compensation, benefits, communications, performance management, and compliance with state and federal labor laws.