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COVID-19 resources for employers2020-10-13T15:22:40-07:00

WORKFORCE PLANNING FAQS

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Against what employment taxes does the Employee Retention Credit apply?2020-04-03T14:45:22-07:00

The credit is allowed against the employer portion of social security taxes under section 3111(a) of the Internal Revenue Code (the “Code”), and the portion of taxes imposed on railroad employers under section 3221(a) of the Railroad Retirement Tax Act (RRTA) that corresponds to the social security taxes under section 3111(a) of the Code.

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Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (internet access, computer, additional phone line, increased use of electricity, etc.)?2020-03-28T13:18:30-07:00

Employers may not require employees who are covered by the FLSA to pay or reimburse the employer for such items that are business expenses of the employer if doing so reduces the employee’s earnings below the required minimum wage or overtime compensation.  (See the U.S. Department of Labor Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

Employers may not require employees to pay or reimburse the employer for such items if telework is being provided to a qualified individual with a disability as a reasonable accommodation under the Americans with Disabilities Act.  (See the U.S. Equal Employment Opportunity Commission’s publication, Work at Home/Telework as a Reasonable Accommodation, for additional information.)

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Are contributions to a multiemployer fund, plan, or other program the only way an employer that is part of a multiemployer collective bargaining agreement may comply with the paid leave requirements of the FFCRA?2020-03-28T12:18:05-07:00

No. Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provide that, consistent with its bargaining obligations and collective bargaining agreement, an employer may satisfy its legal obligations under both Acts by making appropriate contributions to such a fund, plan, or other program based on the paid leave owed to each employee. However, the employer may satisfy its obligations under both Acts by other means, provided they are consistent with its bargaining obligations and collective bargaining agreement.

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Are the paid sick leave and expanded family and medical leave requirements retroactive?2020-03-28T12:04:20-07:00
Are the rules for paying furloughed employees different for State and local governments?2020-04-03T11:29:13-07:00

For non-exempt public employees, the FLSA requires that all covered non-exempt employees receive at least the applicable Federal minimum wage for all hours worked. In a week in which employees work overtime, they must receive their regular rate of pay and overtime pay at a rate not less than one and one-half times the regular rate of pay for all overtime hours. The Act does not preclude an employer from lowering an employee’s hourly rate, provided the rate paid is at least the minimum wage, or from reducing the number of hours the employee is scheduled to work.

For salaried exempt employees, in the case of public sector employees, a specific rule applies to furloughs as described in the following regulatory text, 29 C.F.R. 541.710 :

Deductions from the pay of an employee of a public agency for absences due to a budget-required furlough shall not disqualify the employee from being paid on a salary basis except in the workweek in which the furlough occurs and for which the employee’s pay is accordingly reduced.

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As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?2020-03-28T12:25:32-07:00

You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

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Can a salaried exempt employee volunteer to take time off of work due to lack of work?2020-03-26T17:57:05-07:00

If the employer seeks volunteers to take time off due to insufficient work, and the exempt employee volunteers to take the day(s) off for personal reasons, other than sickness or disability, salary deductions may be made for one or more full days of missed work. The employee’s decision must be completely voluntary.

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Can an Eligible Employer paying qualified wages fund its payments of qualified wages before receiving the credits by reducing its federal employment tax deposits?2020-04-03T15:25:45-07:00

Yes. An Eligible Employer may fund the qualified wages by accessing federal employment taxes, including those that the Eligible Employer already withheld, that are set aside for deposit with the IRS, for other wage payments made during the same quarter as the qualified wages.

That is, an Eligible Employer that pays qualified wages to its employees in a calendar quarter before it is required to deposit federal employment taxes with the IRS for that quarter may reduce the amount of federal employment taxes it deposits for that quarter by half of the amount of the qualified wages paid in that calendar quarter.  The Eligible Employer must account for the reduction in deposits on the Form 941, Employer’s Quarterly Federal Tax Return, for the quarter.

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Can an employee be required to perform work outside of the employee’s job description?2020-03-28T13:07:28-07:00

Yes.  The FLSA does not limit the types of work employees age 18 and older may be required to perform.  However, there are restrictions on what work employees under the age of 18 can do.  This is true whether or not the work asked of the employee is listed in the employee’s job description.

As part of your pre-influenza, pandemic, or other public health emergency planning, you may want to consult your human resource specialists if you expect to assign employees work outside of their job description during a pandemic or other public health emergency.  You may also wish to consult bargaining unit representatives if you have a union contract.

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Can an employee stay home under FMLA leave to avoid getting pandemic influenza?2020-03-28T12:32:35-07:00

The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition.  Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA.  Employers should encourage employees who are ill with pandemic influenza or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.

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Can an employee still be on-call or performing work at home during a furlough day?2020-03-26T17:58:31-07:00

Whether on-call time is hours worked under the FLSA depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time).

For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been “engaged to wait.” An employee who is required to remain on call on the employer’s premises is working while “on call.” An employee who is allowed to leave a message where he/she can be reached is not working (in most cases) while on call. Additional constraints on the employee’s freedom could require this time to be compensated.

Employees who perform part or all of their normal job duties during a furlough day are working while performing such duties.

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Can an employer make prospective reduction in pay for a salaried exempt employee due to the economic downturn?2020-03-26T17:59:07-07:00

An employer is not prohibited from prospectively reducing the predetermined salary amount to be paid regularly to a Part 541 exempt employee during a business or economic slowdown, provided the change is bona fide and not used as a device to evade the salary basis requirements. Such a predetermined regular salary reduction, not related to the quantity or quality of work performed, will not result in loss of the exemption, as long as the employee still receives on a salary basis at least $684* per week. On the other hand, deductions from predetermined pay occasioned by day-to-day or week-to-week determinations of the operating requirements of the business constitute impermissible deductions from the predetermined salary and would result in loss of the exemption. The difference is that the first instance involves a prospective reduction in the predetermined pay to reflect the long term business needs, rather than a short-term, day-to-day or week-to-week deduction from the fixed salary for absences from scheduled work occasioned by the employer or its business operations.

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Can an employer reduce the leave of a salaried exempt employee?2020-03-26T17:56:59-07:00

An employer can substitute or reduce an exempt employee’s accrued leave (or run a negative leave balance) for the time an employee is absent from work, even if it is less than a full day and even if the absence is directed by the employer because of lack of work, without affecting the salary basis payment, provided that the employee still receives payment equal to the employee’s predetermined salary in any week in which any work is performed even if the employee has no leave remaining.

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Can Eligible Employers claim the Employee Retention Credit for qualified wages paid in March 2020?2020-04-03T15:29:37-07:00

Eligible Employers may claim the Employee Retention Credit for qualified wages that they pay after March 12, 2020, and before January 1, 2021. Therefore, an Eligible Employer may be able to claim the credit for qualified wages paid as early as March 13, 2020.

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Can we transfer our existing leaves over to you?2020-10-05T08:45:04-07:00

Yes. We can take on any existing leaves currently in process.

Do employers have to pay employees their same hourly rate or salary if they work at home?2020-03-28T13:13:19-07:00

If telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then you must pay the same hourly rate or salary.

If this is not the case and you do not have a union contract or other employment contracts, under the FLSA employers generally have to pay employees only for the hours they actually work, whether at home or at the employer’s office.  However, the FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek.  Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.

If the Service Contract Act (SCA) or state or local laws regulating the payment of wages also apply, nothing in the FLSA or its regulations or interpretations overrides or nullifies any higher standards provided by such other laws or authority. (See the U.S. Department of Labor, Wage and Hour Division for additional information on the SCA or call 1-866-487-9243.)

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Do OSHA’s regulations and standards apply to the home office? Are there any other Federal laws employers need to worry about if employees work from home?2020-03-28T13:20:32-07:00

The Department of Labor’s Occupational Safety and Health Administration (OSHA) does not have any regulations regarding telework in home offices.  The agency issued a directive in February 2000 stating that the agency will not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees.  If OSHA receives a complaint about a home office, the complainant will be advised of OSHA’s policy.  If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions, but will not follow-up with the employer or employee.

Employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping such records for injuries and illnesses occurring in a home office.

The FLSA and its implementing regulations do not prevent employers from implementing telework or other flexible work arrangements allowing employees to work from home.  Employers would still be required to maintain an accurate record of hours worked for all employees, including those participating in telework or other flexible work arrangements; and to pay no less than the minimum wage for all hours worked and to pay at least one and one-half times the employee’s regular rate of pay for all hours worked over 40 in a workweek to non-exempt employees.

Employers are encouraged to work with their employees to establish hours of work for employees who telework and a mechanism for recording each teleworking employee’s hours of work.  Non-exempt employees must receive the required minimum wage and overtime pay free and clear. This means that when a covered employee is required to provide the tools and equipment (e.g., computer, internet connection, facsimile machine, etc.) needed for telework, the cost of providing the tools and equipment may not reduce the employee’s pay below that required by the FLSA.  (See the U.S. Department of Labor Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

Under the Americans with Disabilities Act, telework could be a reasonable accommodation the employer would need to provide to a qualified individual with a disability, barring any undue hardship.  However, an employer may instead offer alternative accommodations as long as they would be effective.  (See the U.S. Equal Employment Opportunity Commission’s publication, Work at Home/Telework as a Reasonable Accommodation, for additional information.)

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Do we need to sanitize our workplace if there is a potential exposure?2020-03-26T18:37:36-07:00

The CDC recommends that workplaces should be performing routine environmental cleaning, including cleaning of all frequently touched surfaces such as workstations, countertops, and doorknobs.

In the event of potential exposure, it is recommended to close off areas used by the ill persons and wait as long as practical before beginning cleaning and disinfection to minimize the potential for exposure to respiratory droplets. Open outside doors and windows to increase air circulation in the area. If possible, wait up to 24 hours before beginning cleaning and disinfection.

Cleaning staff should clean and disinfect all areas (e.g., offices, bathrooms, and common areas) used by the ill persons, focusing especially on frequently touched surfaces.

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Do you have a dedicated phone number for employees and or HR departments?2020-10-05T08:58:07-07:00

Yes, employees have a toll-free number dedicated to leave administration services. The HR team can use this number and will also have direct extensions to their account team.

Do you need to have access to our HRIS system?2020-10-05T09:00:04-07:00

No. While preferred, access to your systems is not a requirement. During our onboarding process, we work with the client to establish an agreed-upon method for maintaining current and accurate access to employee information needed for leave administration activities.

Do you provide any assistance with training managers?2020-10-05T08:37:28-07:00

Yes. Online, on-demand manager training is included with our service.

Does an employer need to pay an hourly employee for a full day of work if he or she was scheduled for a full day but only worked a partial day due to lack of work?2020-03-26T17:56:36-07:00

The FLSA does not require employers to pay non-exempt employees for hours they did not work.

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Does it matter if the State or local government employee is considered an essential or critical employee for the purposes of a required furlough?2020-03-26T17:57:24-07:00

The application of the FLSA is not affected by the classification of an employee as essential or critical for the purposes of a required furlough.

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Does your company coordinate with short- and long-term disability (STD/LTD) or state disability programs?2020-10-05T09:26:23-07:00

We provide employer contacts with the information needed for compliance, but do not coordinate with those programs directly. For state-required leaves, we provide state-required notices to the employee when the leave is requested to inform the employee of available options. We administer leaves to ensure compliance with state disability leave programs. We also communicate to the employee that they may be eligible for STD/LTD (if available) and advise them to reach out to their HR dept.

Does your company remind employees when their paperwork is due?2020-10-05T09:25:45-07:00

Our standard process is to send two emails and the third outreach is call or text. We will ask employees for their preferred method of communication.

Does your service include an employee portal for employees to submit leave requests and information?2020-10-05T08:57:08-07:00

Yes. We’ve created an easy-to-use leave portal that employees can access 24/7. Click here to see our portal.

Does your service provide the employer with real-time access to leave activities and status?2020-10-05T08:53:23-07:00

Yes. Trüpp’ provides a web-based dashboard containing the current status of each of your organization’s active and archived leaves.

Does your system notify our HR department of new claims or employee leave issues?2020-10-05T09:24:35-07:00

That is an option that can be implemented. Notifications and escalation are addressed and defined during the onboarding process. Additionally, leave status and activities can be viewed in the leave monitoring dashboard.

Does your system send out a weekly report to the HR Department?2020-10-05T09:24:04-07:00

Updates are provided through real-time access to the leave monitoring dashboard. Additional reporting or notification requirements can be addressed during the onboarding process.

How can an Eligible Employer that is paying qualified wages fund the payment of these wages if the Eligible Employer does not have sufficient federal employment taxes set aside for deposit to cover those payments? Can the employer get an advance of the credits?2020-04-03T15:23:54-07:00

Yes.  Because quarterly returns are not filed until after qualified wages are paid, some Eligible Employers may not have sufficient federal employment taxes set aside for deposit to the IRS to fund their qualified wages.  Accordingly, the IRS has established a procedure for obtaining an advance of the refundable credits.

The Eligible Employer should first reduce its remaining federal employment tax deposits for wages paid in the same calendar quarter by the maximum allowable amount.  If the anticipated credit for the qualified wages exceeds the remaining federal employment tax deposits for that quarter, the Eligible Employer can file a Form 7200, Advance Payment of Employer Credits Due to COVID-19, to claim an advance refund for the full amount of the anticipated credit for which it did not have sufficient federal employment tax deposits.

If an Eligible Employer fully reduces its required deposits of federal employment taxes otherwise due on wages paid in the same calendar quarter to its employees in anticipation of receiving the credits, and it has not paid qualified wages in excess of this amount, it should not file the Form 7200.  If it files the Form 7200, it will need to reconcile this advance credit and its deposits with the qualified wages on Form 941 (or other applicable federal employment tax return such as Form 944 or Form CT-1), and it may have an underpayment of federal employment taxes for the quarter.

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How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?2020-03-28T11:59:36-07:00

A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

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How do we establish a process for employees to return to work?2020-04-03T11:41:46-07:00

Sick employees should follow the CDC-recommended steps. Employees should not return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments.

Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and follow CDC recommended precautions.

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How do we give our newly remote team the moral support they need?2020-04-03T11:03:45-07:00

Improving the well-being of remote workers during the COVID-19 outbreak

As the nation combats the COVID-19 pandemic, a significant number of employers are moving to a largely remote workforce. While telecommuting and flexible schedules are common in today’s business ecosystem, many employers have never had to face the challenges of supporting an entire workforce of work-from-home employees complicated even further by a time of strict social distancing mandates. Here are some helpful tips for improving morale and the overall well-being of employees.

Focus on social interaction and connection

Employees are now missing the small interactions they are used to having throughout the day, from small talk in the morning to group banter on lunch breaks. But this doesn’t mean they have to miss out on interacting with others. Utilize the power of virtual communication. Whether your company uses Slack, Zoom, Skype, Microsoft Teams, or a similar application, there are a number of ways to message, call, or video chat with coworkers. Encourage your team to interact on a social level with one another and utilize the channels of communication to fulfill purposes other than work.

Social interactions can extend to whatever interests your employees. Put guidelines in place if necessary, but let your team get creative! Some team building ideas are listed below.

  • Group discussion boards for casual conversation or activity ideas
  • Virtual morning coffee, lunch break, or happy hour
  • Online book club
  • Virtual movie night
  • Posting videos or pictures of your at-home coworkers (pets, kids, etc.)
  • Virtual show-and-tell of your favorite at-home necessities

Encourage healthy best practices for work-life balance

When an employee is working from home and then continues to stay at home after work hours, it can be hard to find balance. Encouraging your employees to take time to refresh and relax throughout the day is more important than ever.

Here are some simple ways to support the overall well-being of your employees:

  • Encourage breaks – Give your employees ideas for incremental breaks throughout the day, such as getting outside for a walk, Facetiming a friend or family member, or even just relaxing on the patio or couch with a cup of coffee. Anything that helps them to step away from their work and reset their minds.
  • Provide at-home workout resources – Even if an employee doesn’t live the most active lifestyle or lacks the workout equipment necessary to do certain exercises, there are infinite ways they can get in some productive physical activity. Explore phone apps, forums, or other resources for working out at home and pass them along to your team.
  • Provide mental-health resources – With an increased lack of social interaction or feelings of isolation, employees who are highly social or who struggle with depression or mental illness are likely to face an uphill battle. Encourage remote employees to use tools like meditation and relaxation apps or telemedicine resources for mental health services. Even those who enjoy solitude may find these types of resources helpful at this time.

Show empathy and help with unexpected challenges and circumstances

As employees are thrown out of their daily routine, challenges are inevitable. Whether it’s parenting logistics, frustration with technology, or simply struggling to cope with the reality of the current situation, extend support to your remote workers. While it’s impossible to know or understand the personal circumstances of every individual, focus on paying attention to social cues, showing empathy, and being flexible in your approach. As an employer and coworker, be mindful of others and the help they may need from you. Adding this approach to your business continuity plan will facilitate greater productivity and wellbeing among your remote workers and keep them going strong for the long-haul.

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How does an Eligible Employer claim the refundable tax credit for qualified wages?2020-04-03T15:26:28-07:00

Eligible Employers will report their total qualified wages and the related credits for each calendar quarter on their federal employment tax returns, usually Form 941, Employer’s Quarterly Federal Tax Return.  Form 941 is used to report income and social security and Medicare taxes withheld by the employer from employee wages, as well as the employer’s portion of social security and Medicare tax.

In anticipation of receiving the credits, Eligible Employers can fund qualified wages by accessing federal employment taxes, including withheld taxes, that are required to be deposited with the IRS or by requesting an advance of the credit from the IRS.

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How is the maximum amount of the Employee Retention Credit available to Eligible Employers determined?2020-04-03T15:32:38-07:00

The credit equals 50 percent of the qualified wages (including qualified health plan expenses) that an Eligible Employer pays in a calendar quarter.  The maximum amount of qualified wages taken into account with respect to each employee for all calendar quarters is $10,000, so that the maximum credit for qualified wages paid to any employee is $5,000.

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How long does it take to get setup?2020-10-01T18:50:37-07:00

Onboarding and implementation typically take 4-6 weeks from service agreement execution to when we are ready to go live with receiving leave requests and administering leaves.

How long will it take for our employees to receive responses to requests or questions?2020-10-05T08:59:05-07:00

Trüpp has a service level agreement (SLA) to respond to requests within four business hours.

How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?2020-03-28T12:56:01-07:00

The FLSA generally applies to hours actually worked.  It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.

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How often does our HR department get calls from your company?2020-10-05T09:26:55-07:00

Most requests for information and notifications will be communicated via email. Calls are more likely to occur when something needs to be escalated. When implementing services for a new client, we typically require two onboarding meetings. Depending on the client and number/complexity of leaves, we will determine the frequency and cadence for check-in meetings with the HR team.

How should the Emergency Paid Family Leave be administered?2020-03-26T18:41:17-07:00

The emergency paid family leave provides up to 12 weeks of paid family leave for employees who are unable to work, or telework, due to a qualifying need related to COVID-19 in order to care for a child (under the age of 18) because their school or place of care has been closed or their childcare provider is otherwise unavailable to provide care due to COVID-19.

This emergency paid family leave is an expansion of the federal Family and Medical Leave Act (FMLA) and is in addition to what the employer already provides under state or local law. Employers are not allowed to require employees to use other accrued leave before using this emergency paid leave. Emergency paid family leave takes effect on April 1, 2020, will end on December 31, 2020.

Step 1: Determine employer eligibility

Employers with 500 or fewer employees are required to offer Emergency Paid Family Leave.

Employers with 50 or fewer employees may be eligible for an exemption if providing the benefit will impact their ability to continue as a going concern.

Step 2: Determine employee eligibility 

All employees that have been employed for at least 30 calendar days are eligible.

Step 3: Assess the qualifying reason

Eligible employees may take up to 12 weeks of Emergency Paid Leave if they are unable to work, or telework, in order to care for a child under the age of 18 because their school or place of care has been closed or their childcare provider is otherwise unavailable to provide care due to COVID-19.

Step 4: Identify benefits available to employees

Eligible employees will receive up to 12 weeks of emergency paid leave through December 31, 2020. The first 10 days of an emergency family and medical leave are unpaid; however, the employee may use any other available paid leave, such as emergency paid sick leave or accrued and unused sick or vacation time.

Eligible employees will receive two-thirds of their regular rate of pay for the number of hours the employee would otherwise be regularly scheduled to work up to $200 per day and $10,000 total.

Step 5: Submit for reimbursement

It is recommended to create a separate pay code for this compensation to make it easier to identify when applying for the government tax credit.

Employers are required to withhold federal income taxes and the employees’ share of Social Security and Medicare taxes from their employees’ paychecks. Typically, these funds are deposited with the IRS along with filing or quarterly payroll tax returns (Form 941 series).

Employers can receive immediate reimbursement for these payments to employees by retaining and accessing funds that they would otherwise set aside for payroll taxes to the IRS during payroll processing.  If these amounts are not sufficient to cover the cost of the paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form. Employers can expect to receive their advance from the IRS approximately two weeks after submittal.

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How should the Emergency Paid Sick Leave be administered?2020-03-26T18:41:58-07:00

Emergency paid sick leave is now mandated under the Families First Coronavirus Response Act. The additional sick leave provides 80 hours of paid sick leave for full-time employees. Part-time employees are eligible for a prorated amount equal to the average number of hours the employee works over a two-week period.

The emergency paid leave is in addition to what the employer already provides under state or local law. Employers are not allowed to require employees to use other accrued leave before using this emergency paid leave. Emergency paid sick leave takes effect on April 1, 2020, will end on December 31, 2020.

Step 1: Determine employer eligibility

The emergency paid leave applies to all employers with 500 or fewer employees. Employers will be required to offer paid sick leave when an employee is unable to work, or telework, for the following reasons:

  • To obtain medical care for the employee’s symptoms of COVID-19
  • To quarantine at the instruction of a health care provider, employer, or government official, to prevent the spread of COVID19
  • To care for or assist a family member who is experiencing symptoms or has been diagnosed with COVID-19
  • To care for the employee’s child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19 related reasons

Employers with 50 or fewer employees may be eligible for an exemption from providing paid sick leave for childcare-related absences as a result of school or daycare closures. An employer will need to document why providing this benefit would jeopardize the employer’s ability to remain an ongoing concern.  

Step 2: Determine employee eligibility

All employees are eligible for this additional sick leave immediately regardless of how long they’ve been employed.

Step 3: Assess the qualifying reasons

Employees can use paid sick leave based on the following qualified reasons:

  • Has obtained a medical diagnosis or care for coronavirus symptoms;
  • Self-isolates because of coronavirus diagnosis;
  • To care for their child if school is closed due to a public health emergency when an employer is closed due to a public health emergency, or
  • If the employee or a covered family member is quarantined or isolated due to a coronavirus.

Employers should be aware of guidance from OSHA and many state departments of health to not require employees to provide a healthcare provider’s note to validate their illness.

Step 4:  Identify Benefits Available to Employees

Employees will be paid their regular rate up to $511 per day, except for time spent caring for a family member, in which case only 2/3 of the regular rate will be paid up to $200 per day.

Paid sick time shall not carry over from one year to the next as the Act will expire on December 31, 2020. Unused paid sick time is not paid out to employees upon separation of employment.

Step 5: Submit for reimbursement

It is recommended to create a separate pay code for this compensation to make it easier to identify when applying for the government tax credit.

Employers are required to withhold federal income taxes and the employees’ share of Social Security and Medicare taxes from their employees’ paychecks. Typically, these funds are deposited with the IRS along with filing or quarterly payroll tax returns (Form 941 series).

Employers can receive immediate reimbursement for these payments to employees by retaining and accessing funds that they would otherwise set aside for payroll taxes to the IRS during payroll processing. If these amounts are not sufficient to cover the cost of the paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form. Employers can expect to receive their advance from the IRS approximately two weeks after submittal.

Reference Article

How should we process payroll for COVID-19 mandatory paid emergency leave2020-03-27T18:21:04-07:00

All employers with less than 500 employees are required to provide Paid Emergency Leave for employees who are unable to work as a result of the COVID-19 crisis. Qualifying reasons include missing work to quarantine, to seek a COVID-19 diagnosis or preventive care.

Employers can, however, receive a tax credit on their quarterly payroll tax filings for the amounts paid to employees under Emergency Leave. We recommend setting up unique pay codes that identify the exact hours/wages paid under these requirements to make reporting go more smoothly.

Employee Payroll Taxes

Amounts paid to employees as paid sick leave or paid family and medical leave are taxable to the individual employee and subject to employment taxes.

Employer Payroll Taxes

Amounts paid to employees as Paid Sick Leave or Paid Family and Medical Leave:

    • ARE NOT considered wages for the purpose of determining the employer’s share of Social Security taxes
    • ARE considered wages in determining the employer’s share of Medicare taxes 

OASDI Tax Credits for Employers

A tax credit is available for employers against the employer’s portion of OASDI (social security) payroll taxes equal to the amount of Paid Sick Leave or Paid Family and Medical Leave paid to employees when filing the quarterly Form 941 subject to the following caps for each benefit:

    • Paid Sick Leave:  Regular wages up to $511 per day or $200 per day for employees caring for a family member with a COVID-19 diagnosis, or to care for a child whose school or daycare has closed as a result of coronavirus concerns.
    • Paid Family & Medical Leave: Two-thirds of regular wages up to $200 ($10,000 total) per day for up to ten weeks for employees caring for a child whose school or daycare has closed as a result of coronavirus concerns.

Under the Paid Emergency Leave Act, there will be an allowance of credit for certain employer’s “qualified health plan expenses”. Generally, these expenses include the amounts paid for a group health plan that can be excluded from an employees’ income. The employer’s share of Medicare tax on Paid Sick Leave and Family and Medical Leave wages can also be added to the employer’s credit amount.

Note: Many payroll companies (Paylocity, ADP, etc.) file the quarterly Form 941 on behalf of employers so we recommend communicating with your payroll provider to ensure that they have identified a process to accurately file for these credits.

Reference Article

I am an employer that is part of a multiemployer collective bargaining agreement, may I satisfy my obligations under the Emergency Family and Medical Leave Expansion Act through contributions to a multiemployer fund, plan, or program?2020-03-28T12:14:59-07:00

You may satisfy your obligations under the Emergency Family and Medical Leave Expansion Act by making contributions to a multiemployer fund, plan, or another program in accordance with your existing collective bargaining obligations. These contributions must be based on the amount of paid family and medical leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.

Reference Article

I am an employer that is part of a multiemployer collective bargaining agreement, may I satisfy my obligations under the Emergency Paid Sick Leave Act through contributions to a multiemployer fund, plan, or program?2020-03-28T12:16:34-07:00

You may satisfy your obligations under the Emergency Paid Sick Leave Act by making contributions to a multiemployer fund, plan, or another program in accordance with your existing collective bargaining obligations. These contributions must be based on the hours of paid sick leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.

Reference Article

If an employer directs salaried, exempt employees to take vacation (or leave bank deductions) or leave without pay during office closures due to influenza, pandemic, or other public health emergency, does this impact the employee’s exempt status?2020-03-28T12:58:20-07:00

Exempt, salaried employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.  The FLSA does not require employer-provided vacation time. Where an employer offers a bona fide benefits plan or vacation time to its employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on a specific day(s). Further, this will not affect the employee’s salary basis of payment so long as the employee still receives in payment an amount equal to the employee’s guaranteed salary. However, an employee will not be considered paid “on a salary basis” if deductions from the predetermined compensation are made for absences occasioned by the office closure during a week in which the employee performs any work. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work.

Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt. For more information, see WHD Opinion Letter FLSA2005-41.

Reference Article

If an employer is having trouble meeting payroll, do they need to pay non-exempt employees on the regular payday?2020-04-03T11:35:24-07:00

In general, an employer must pay covered non-exempt employees the full minimum wage and any statutory overtime due on the regularly scheduled payday for the workweek in question. Failure to do so constitutes a violation of the FLSA. When the correct amount of overtime compensation cannot be determined until sometime after the regular pay period, however, the requirements of the FLSA will be satisfied if the employer pays the excess overtime compensation as soon after the regular pay period as is practicable.

Reference Article

If an employer temporarily closes his or her place of business because of an influenza pandemic and chooses to lay off some but not all employees, are there any federal laws that would govern this decision?2020-04-03T10:50:25-07:00

The federal laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, or disability may apply.  (See the U.S. Equal Employment Opportunity Commission (EEOC) or call 1-800-669-4000 if you have questions.)  Other specific Federal laws that prohibit discrimination on these or additional bases may also govern if an employer is a Federal contractor or a recipient of Federal financial assistance.

Additionally, the Worker Adjustment and Retraining Notification (WARN) Act helps ensure advance notice in cases of qualified plant closings and mass layoffs.  For more information about the WARN Act see https://www.dol.gov/agencies/eta/layoffs/warn.

You may also not discriminate against an employee because the employee has requested or used qualifying FMLA leave.  (See the U.S. Department of Labor, Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

In addition, you may not discriminate against an employee because he or she is a past or present member of the United States uniformed service.  (See the U.S. Department of Labor, Veterans’ Employment and Training Service for additional information or call 1-866-889-5627 if you have questions.)

Reference Article

If I am a private sector employer and have 500 or more employees, do the Acts apply to me?2020-03-28T12:23:36-07:00

No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.[1]

[1] If you are a Federal employee, you are eligible to take paid sick leave under the Emergency Paid Sick Leave Act.  But only some Federal employees are eligible to take expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act. Your eligibility will depend on whether you are covered under Title I or Title II of the Family Medical Leave Act. Federal employees should consult with their agency regarding their eligibility for expanded family and medical leave. The Office of Personnel and Management will provide information on federal employee coverage. Additional FAQs regarding public sector employers will be forthcoming.

Reference Article

If I am an employer, may I require an employee to supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?2020-03-28T12:11:44-07:00

No. Under the FFCRA, only the employee may decide whether to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. The employee would have to agree to use existing paid leave under your paid leave policy to supplement or adjust the paid leave under the FFCRA.

Reference Article

If I am an employer, may I supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?2020-03-28T12:08:03-07:00

If your employee chooses to use existing leave you have provided, yes; otherwise, no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including Federal employees. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid or exceeds the limits set forth under Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

However, you are not required to permit an employee to use existing paid leave to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. Further, you may not claim, and will not receive tax credit, for such supplemental amounts.

Reference Article

If I want to pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can I do so and claim a tax credit for the entire amount paid to them?2020-03-28T12:12:24-07:00

You may pay your employees in excess of FFCRA requirements. But you cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits.

Reference Article

If individuals volunteer to a private, not-for-profit organization, are they entitled to compensation?2020-03-28T13:09:40-07:00

Individuals who volunteer their services in an emergency relief capacity to private not-for-profit organizations for civic, religious or humanitarian objectives, without contemplation or receipt of compensation, are not considered employees due compensation under the FLSA.  However, employees of such organizations may not volunteer to perform on an uncompensated basis the same services they are employed to perform.

Where employers are requested to furnish their services, including their employees, in emergency circumstances under Federal, state or local general police powers, the employer’s employees will be considered employees of the government while rendering such services.  No hours spent on the disaster relief services are counted as hours worked for the employer under the FLSA.

Reference Article

If individuals volunteer to a public agency, are they entitled to compensation?2020-03-28T13:08:39-07:00

Individuals who volunteer their services to a public agency (such as a state, parish, city or county government) in an emergency capacity are not considered employees due compensation under the FLSA if they:

  • Perform such services for civic, charitable or humanitarian reasons without promise, expectation, or receipt of compensation. The volunteer performing such service may, however, be paid expenses, reasonable benefits or a nominal fee to perform such services; and,
  • Offer their services freely and without coercion, direct or implied; and,
  • Are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer.

Reference Article

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?2020-03-28T11:58:19-07:00

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.

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.

Reference Article

If we decide not to allow our systems access to your company, what will HR and or the employee be responsible for?2020-10-05T09:58:37-07:00

During our onboarding process, we work with the client to establish an agreed-upon method for maintaining current and accurate access to employee information needed for leave administration activities.

In general, can an employer reduce an otherwise exempt employee’s salary due to a slowdown in business?2020-04-03T11:39:27-07:00

Reductions in the predetermined salary of an employee who is exempt under Part 541 of the Department of Labor’s regulations will ordinarily cause a loss of the exemption. Such an employee must then be paid at least the federal minimum wage and overtime pay required by the FLSA. In some circumstances, however, a prospective reduction in salary may not cause a loss of the exemption.

Section 13(a)(1) of the FLSA exempts from minimum wage and overtime pay “any employee employed in a bona fide executive, administrative, or professional capacity” as defined in 29 C.F.R. 541 . An employee qualifies for exemption if the duties and salary tests are met. See Fact Sheet #17A .

FLSA section 13(a)(1) requires payment of at least $684* per week on a “salary” basis for those employed as exempt executive, administrative, or professional employees. See Fact Sheet #17G . A salary is a predetermined amount constituting all or part of the employee’s compensation, which is not subject to reduction because of variations in the quality or quantity of the work performed. Beginning January 1, 2020, employers may use nondiscretionary bonuses and incentive payments (including commissions) paid on an annual or more frequent basis, to satisfy up to 10 percent of the standard salary level.

An employer must pay an exempt employee the full predetermined salary amount “free and clear” for any week in which the employee performs any work without regard to the number of days or hours worked. However, there is no requirement that the predetermined salary be paid if the employee performs no work for an entire workweek. Deductions may not be made from the employee’s predetermined salary for absences occasioned by the employer or by the operating requirements of the business. If the employee is ready, willing, and able to work, deductions may not be made for time when work is not available. Salary deductions are generally not permissible if the employee works less than a full day. Except for certain limited exceptions found in 29 C.F.R. 541.602(b)(1)-(7) , salary deductions result in loss of section 13(a)(1) exemption.

Deductions from the pay of an employee of a public agency for absences due to a budget-required furlough disqualify the employee from being paid on a salary basis only in the workweek when the furlough occurs and for which the pay is accordingly reduced under 29 C.F.R. 541.710 . See FAQ #9 below.

Physicians, lawyers, outside salespersons, or teachers in bona fide educational institutions are not subject to any salary requirements. Deductions from the salary or pay of such employees will not result in loss of the exemption.

Reference Article

In the event an employer brings on temporary employees from a staffing agency to supplement its workforce due to staffing shortages, is the employer liable if the temporary employees are not paid in accordance with the wage requirements of the FLSA?2020-03-28T13:22:13-07:00

Under the FLSA, an employee may be employed by one or more individuals or entities.  If one or more of these employers are deemed joint employers, they may both be responsible—and jointly and severally liable—for the employee’s required minimum wage and overtime pay. The U.S. Department of Labor recently updated and revised its regulations providing guidance regarding joint-employer status under the FLSA. The final rule provides updated guidance for determining joint-employer status when an employee performs work for his or her employer that simultaneously benefits another individual or entity. The effective date of the final rule is March 16, 2020. For more information please visit https://www.dol.gov/agencies/whd/flsa/2020-joint-employment.

Reference Article

In the event an organization bars employees from working from their current place of business and requires them to work at home, will employers have to pay those employees who are unable to work from home?2020-03-28T13:14:53-07:00

Under the FLSA, employers generally only have to pay employees for the hours they actually work, whether at home or at the employer’s office.  However, employers must pay at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek.  Salaried exempt employees must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.  (See the U.S. Department of Labor Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

When not all employees can work from home, we encourage you to consider additional options to promote social distancing, such as staggered work shifts.

Reference Article

Is all leave under the FMLA now paid leave?2020-03-28T12:03:13-07:00

No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

Reference Article

Is an employer required by law to provide paid sick leave to employees who are out of work because they have pandemic influenza, have been exposed to a family member with influenza, or are caring for a family member with influenza?2020-03-28T12:34:35-07:00

Federal law generally does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu or are caring for someone with the flu, although pursuant to Executive Order 13706, some federal contractors may be required to provide such leave to employees under certain circumstances, such as if the employee or a family member is sick with the flu or seeking care related to the flu. Certain state or local laws may have different requirements, which should be independently considered by employers when determining their obligation to provide paid sick leave.

If the leave qualifies as FMLA-protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances.  Employers should encourage employees that are ill with pandemic influenza to stay home and should consider flexible leave policies for their employees.

Reference Article

Is an Employer required to pay qualified wages to its employees under the CARES Act?2020-04-03T15:31:02-07:00

No. The CARES Act does not require employers to pay qualified wages.  In addition, Eligible Employers may elect to not claim the credit for the Employee Retention Credit.  (The FFCRA does require certain employers to pay sick or family leave wages to employees who are unable to work or telework due to a COVID-19 circumstance.  These employers may be entitled to a refundable tax credit for those wages paid, although the employers may elect not to claim the credit.)

Reference Article

Is it legal for an employer to reduce the wages or number of hours of an hourly employee?2020-03-26T17:56:31-07:00

The FLSA requires that all covered non-exempt employees receive at least the applicable Federal minimum wage for all hours worked. In a week in which employees work overtime, they must receive their regular rate of pay and overtime pay at a rate not less than one and one-half times the regular rate of pay for all overtime hours. The Act does not preclude an employer from lowering an employee’s hourly rate, provided the rate paid is at least the minimum wage, or from reducing the number of hours the employee is scheduled to work.

Reference Article

Is there a required poster associated with the Families First Coronavirus Response Act?2020-03-28T13:40:58-07:00

Yes. The Families First Coronavirus Response Act (FFCRA) passed and will go into effect on April 1, 2020. Certain public sector employers and private sector employers with fewer than 500 employees are covered by this new federal regulation.

Every covered employer must post an official notice of the FFCRA requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees or posting this notice on an employee information internal or external website.

Download the FFCRA posters you need here:

The law goes into effect on April 1, 2020. However, you may want to wait until March 31, 2020 to mail, email, or download, print, and hang the poster to ensure you have the most current version. It is likely that the DOL will provide more clarity in an updated version prior to April 1, 2020.

The Department of Labor has provided a convenient Q&A page for the Families First Coronavirus Response Act notices. They have also provided a Q&A page with helpful information for employers on complying with the Families First Coronavirus Response Act itself.

Reference Article

May an Eligible Employer receive both the Employee Retention Credit and a Small Business Interruption Loan under the Paycheck protection Program that is authorized under the CARES Act?2020-04-03T15:17:41-07:00

No. An Eligible Employer may not receive the Employee Retention Credit if the Eligible Employer receives a Small Business Interruption Loan under the Paycheck Protection Program that is authorized under the CARES Act (“Paycheck Protection Loan”). An Eligible Employer that receives a paycheck protection loan should not claim Employee Retention Credits.

Reference Article

May an Eligible Employer receive both the tax credits for the qualified leave wages under the FFCRA and the Employee Retention Credit under the CARES Act?2020-04-03T15:22:59-07:00

Yes, but not for the same wages.  The amount of qualified wages for which an Eligible Employer may claim the Employee Retention Credit does not include the amount of qualified sick and family leave wages for which the employer received tax credits under the FFCRA.

Reference Article

May an Eligible Employer receive the Employee Retention Credit for periods after December 31, 2020?2020-04-03T15:28:42-07:00

No. The Employee Retention Credit is only available with respect to wages paid after March 12, 2020, and before January 1, 2021.

Reference Article

May an Eligible Employer reduce its federal employment tax deposit by the qualified wages that it has paid without incurring a failure to deposit penalty?2020-04-03T15:24:48-07:00

Yes.  An Eligible Employer will not be subject to a penalty under section 6656 of the Code for failing to deposit federal employment taxes relating to qualified wages in a calendar quarter if:

  1. the Eligible Employer paid qualified wages to its employees in the calendar quarter before the required deposit,
  2. the amount of federal employment taxes that the Eligible Employer does not timely deposit, reduced by any amount of federal employment taxes not deposited in anticipation of the paid sick or family leave credits claimed under the FFCRA, is less than or equal to the amount of the Eligible Employer’s anticipated Employee Retention Credit for the qualified wages for the calendar quarter as of the time of the required deposit, and
  3. the Eligible Employer did not seek payment of an advance credit by filing Form 7200, Advance Payment of Employer Credits Due to COVID-19, with respect to any portion of the anticipated credits it relied upon to reduce its deposits.

For more information, about the relief from the penalty for failure to deposit federal employment taxes on account of qualified wages, see Notice 2020-22 (PDF).

Reference Article

May an employer encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection control strategy?2020-03-28T13:11:25-07:00

Yes. An employer may encourage or require employees to telework as an infection-control or prevention strategy, including based on timely information from public health authorities about pandemics, public health emergencies, or other similar conditions. Telework also may be a reasonable accommodation.

Of course, employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by any of the EEO laws. (See the U.S. Equal Employment Opportunity Commission’s publication, Work at Home/Telework as a Reasonable Accommodation, for additional information.)

Reference Article

May an employer require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?2020-03-28T12:49:33-07:00

Yes.  However, employers should consider that during a pandemic, healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.

During a pandemic health crisis, under the Americans with Disabilities Act1 (ADA), an employer would be allowed to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom-free before it allows the employee to return to work.  Specifically, an employer may require the above actions of an employee where it has a reasonable belief – based on objective evidence – that the employee’s present medical condition would

  • impair his ability to perform essential job functions (i.e., fundamental job duties) with or without reasonable accommodation, or,
  • pose a direct threat (i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace.

In situations in which an employee’s leave is covered by the FMLA, the employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee’s health care provider that the employee is able to resume work.  Employers are required to notify employees in advance if the employer will require a fitness-for-duty certification to return to work.  If a state or local law or the terms of a collective bargaining agreement govern an employee’s return to work, those provisions shall be applied.  Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.

Reference Article

May employers change their paid sick leave policy if a number of employees are out and they cannot afford to pay them all?2020-03-28T12:40:40-07:00

Federal equal employment opportunity laws do not prohibit employers from changing their paid sick leave policy if it is done in a manner that does not discriminate between employees because of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.  Be sure also to consult state and local laws.

In addition, you should consider that if your workforce is represented by a labor union and the collective bargaining agreement covers sick leave policies, you may be limited in either the manner in which you change the policy or the manner of the changes themselves because the collective bargaining agreement would be controlling. In a workplace without a collective bargaining agreement, employees may have a contractual right to any accrued sick leave, but not future leave.

Your sick leave policy also has to follow the requirements of the FMLA (if your employees are covered by the Act), and it needs to be consistent with federal workplace anti-discrimination laws, such as the Americans with Disabilities Act (ADA). (See the U.S. Department of Labor, Wage and Hour Division or call 1-866-487-9243 for additional information on FMLA.  See the U.S. Equal Employment Opportunity Commission or call 1-800-669-4000 if you have questions on ADA.)

Reference Article

May employers send employees home if they show symptoms of pandemic influenza? Can the employees be required to take sick leave? Do they have to be paid? May employers prevent employees from coming to work?2020-03-28T12:39:23-07:00

It is important to prepare a plan of action specific to your workplace, given that a pandemic influenza outbreak could affect many employees.  This plan or policy could permit you to send employees home, but the plan and the employment decisions must comply with the laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.  It would also be prudent to notify employees (and if applicable, their bargaining unit representatives) about decisions made under this plan or policy at the earliest feasible time.

Your company policies on sick leave, and any applicable employment contracts or collective bargaining agreements would determine whether you should provide paid leave to employees who are not at work.  If the leave qualifies as FMLA-protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances.  (See the U.S. Department of Labor Wage and Hour Division for additional information or call 1-866-487-9243 if you have any questions.)

Remember when making these decisions to exclude employees from the workplace, you cannot discriminate on the basis of race, sex, age (40 and over), color, religion, national origin, disability, union membership or veteran status.  However, you may exclude an employee with a disability from the workplace if you:

  • obtain objective evidence that the employee poses a direct threat (i.e. significant risk of substantial harm); and
  • determine that there is no available reasonable accommodation (that would not pose an undue hardship) to eliminate the direct threat.

(See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act for additional information.)

Reference Article

Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick?2020-03-28T12:31:42-07:00

An employee who is sick or whose family members are sick may be entitled to leave under the FMLA under certain circumstances. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. This may include the flu where complications arise that create a “serious health condition” as defined by the FMLA. Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period.

Workers who are ill with pandemic influenza or have a family member with influenza are urged to stay home to minimize the spread of the pandemic. Employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.

Reference Article

Some employees may not be able to come to work because they have to take care of sick family members. May an employer lay them off?2020-03-28T12:46:07-07:00

It depends.  If an employee is covered and eligible under the FMLA and is needed to care for a spouse, daughter, son, or parent who has a serious health condition, then the employee is entitled to up to 12 weeks of job-protected, unpaid leave during any 12-month period. Some states may have similar family leave laws.  In those situations, covered employers must comply with the federal or state provision that provides the greater benefit to their employees.  (See the U.S. Department of Labor, Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

In lieu of laying off employees in this situation, we would encourage you to consider other options such as telecommuting and to prepare a plan of action specific to your workplace.

Reference Article

What are “qualified wages?”2020-04-03T15:31:49-07:00

Qualified wages are wages (as defined in section 3121(a) of the Internal Revenue Code (the “Code”)) and compensation (as defined in section 3231(e) of the Code) paid by an Eligible Employer to employees after March 12, 2020, and before January 1, 2021. Qualified wages include the Eligible Employer’s qualified health plan expenses that are properly allocable to the wages.

The definition of qualified wages depends, in part, on the average number of full-time employees (as defined in section 4980H of the Code) employed by the Eligible Employer during 2019.

If the Eligible Employer averaged more than 100 full-time employees in 2019, qualified wages are the wages paid to an employee for time that the employee is not providing services due to either (1) a full or partial suspension of operations by order of a governmental authority due to COVID-19, or (2) a significant decline in gross receipts.  For these employers, qualified wages taken into account for an employee may not exceed what the employee would have been paid for working an equivalent duration during the 30 days immediately preceding the period of economic hardship.

If the Eligible Employer averaged 100 or fewer full-time employees in 2019, qualified wages are the wages paid to any employee during any period of economic hardship described in (1) and (2) above.

Reference Article 

What are an employer’s obligations to an employee who is under government-imposed quarantine?2020-03-28T13:01:12-07:00

WHD encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees.

Reference Article

What are my options for reducing payroll expenses resulting from COVID-19?2020-04-03T15:40:13-07:00

Paycheck Protection Program (PPP) Loans

What is the benefit?

PPP Loans enable a business to avoid or delay reducing its staffing levels or expenses with the assurance that all or part of its short-term expenses will be reimbursed. These loans allow a business to borrow up to 2.5 times its average monthly payroll (wages, tips, FML, health benefits, retirement, and State and Local taxes), including rent, mortgage interest, and utilities (Up to $10 million). Businesses may also apply for loan forgiveness for the eight weeks of covered expenses paid during the period of February 15, 2020, through June 30, 2020. 100% of the loan may be forgiven (for salaries up to $100,000) but will be reduced if the employer reduces staff or salaries during the time period.

Who is eligible?

Generally, any business concern, non-profit organization (501(c)3), veteran’s organization (501(c)19), or tribal business that employs less than 500 is eligible for these loans; including sole proprietors, independent contractors, and eligible self-employed individuals. Go here to learn more.

What needs to occur?

Apply for a Paycheck Protection Program (PPP) at any lending institution that is approved to participate in the program through the U.S. Small Business Administration (SBA) 7(a) lending program and additional lenders approved by the Department of Treasury.

If you have already reduced or are considering reducing staff or staffing costs, your organization’s ability to take full advantage of this benefit may be impacted. So, be sure to assess your organization’s ability (and the associated benefit) to bring back furloughed employees or postpone reducing payroll expenses prior to leveraging the PPP loan. Check with your local SBA-approved lender for details.

State Work Share Programs

What is the benefit?

Work Share programs allow employers to reduce the hours of permanent and hourly-paid employees by as much as 50 percent, and the employees can collect partial unemployment benefits to replace a portion of their lost wages. While on the Work Share program, employees are not required to do an active search for work. You must apply to participate in the program. Check with your state or use this resource to find states with Work Share programs.

Who is eligible?

Businesses that have applied and met requirements through their state-specific program are eligible.

What needs to occur?

Program requirements will vary by state but employers generally must identify a minimum number of employees who will be included in the program, cut hours within the range designated by the program (e.g., 20 – 50%), and only include employees who meet the program requirements (e.g., regular, full-time employees who are eligible for unemployment benefits).

Employee Hours, Salaries, or Benefit Reduction

What is the benefit?

Employers are able to decrease payroll expenses temporarily while retaining employees. This allows employers to avoid the time and expense of hiring and training a new workforce at a later date while retaining valued team members. Affected employees may be eligible to receive unemployment benefits to help compensate for the loss of hours.

Who is eligible?

Employers may consider reducing the hours of employees who are hourly and not represented by a bargaining unit or do not otherwise have employment contracts or agreements guaranteeing minimum hours worked.

What needs to occur?

Employers are advised to define objective criteria for determining which employees will receive a temporary reduction in hours, pay, or benefits. These criteria should be applied to all affected employees consistently in order to avoid claims of discrimination. Employers should verify that pay adjustments continue to meet local state minimum wage requirements.

Temporary Layoff or Furlough

What is the benefit?

A temporary layoff is a separation of employment with the expectation that the employer will, at a later date, resume business operations and rehire the employee. Several states have implemented temporary layoff timelines, and other states are allowing the timeline for temporary layoffs to be an undetermined period as long as there is an expectation that the employee will return to work once business operations resume.

When furloughed, on the other hand, employees are moved to a leave or standby status and are still on the payroll. Employees may be eligible for unemployment while on furlough.

Who is eligible?

Employees who are impacted by a temporary layoff or furlough may be eligible for unemployment benefits and may not be required to look for work with other employers, depending on state rules. The CARES Act also provides for up to $600 per week in additional unemployment insurance for employees affected. Employees may lose medical insurance according to plan provisions (e.g., date of separation or last day of the month), and employers can choose to reimburse employees for COBRA costs, though not required.

What needs to occur?

Employers should be diligent about which employees are selected for a temporary lay off or furlough. The decisions should be based on business needs, including identifying those employees who are deemed essential and, therefore, not subject to the temporary layoff. Employers should clearly communicate the layoff is temporary due to the impact of COVID-19, and that they have every intention of bringing employees back to work.

Permanent Layoff or Reduction in Force (RIF)

What is the benefit?

A permanent layoff or RIF is a separation of employment without the expectation that the employer will resume business operations or operate at current staffing levels. These typically occur if there is a permanent business or plant closure or a need to reduce headcount in the long term.

Who is eligible?

With a permanent layoff in which a work location is closed, resulting in 50 (for employers with 100+ employees) or more employees suffering an employment loss, a Worker Adjustment and Retraining Notification (WARN) is generally required. A notice is also required if 33 percent of the full-time employees or more than 500 employees at a single work location suffer an employment loss.  Many states have enacted their own “mini WARN Acts” that create additional requirements that vary by state, including lower headcount requirements.

Fortunately, there are exceptions to the WARN Act that apply to the extraordinary circumstances many businesses are facing as a result of the COVID-19 emergency. It is likely the COVID-19 crisis may qualify as an exemption for complying with the WARN Act; however, employers should give as much notice as possible.

What needs to occur?

This option is a permanent separation of employment. Employees who are impacted by a permanent layoff may be eligible for unemployment benefits and may be required to look for work with other employers, depending on state rules. Employees may also be eligible for additional weekly unemployment wages of up to $600 per week, from the CARES Act benefit. Employees will lose medical insurance according to plan provisions (e.g., date of separation or last day of the month). Employers may provide reimbursement for COBRA expenses, though not required.

Reference Article

What do we do if an employee is worried about contracting COVID-19 in the workplace?2020-04-03T11:43:01-07:00

If an employee is not comfortable going into the office anymore, an employer should try to work with the concerned employee to devise any changes to work schedules or other flexible working arrangements, such as telecommuting. If employees will be telecommuting to the office, be sure there is a clear policy in place for them to adhere to. An employer may also wish to refer the employee to its employee assistance program (EAP) if one is available.

Employers should be aware that it may be considered a protected activity for a healthy, asymptomatic employee to refuse to come to work based on a fear of contracting COVID-19. Employers should consult with a qualified employment expert before imposing discipline against an employee who is refusing to go into work for this reason.

Reference Article

What do we do if there was a potential exposure in our workplace?2020-03-26T18:36:13-07:00

If an employee is confirmed to have COVID-19 or a health care professional/health department informs an employee of potential exposure, the employer should inform fellow employees of their possible exposure in the workplace but maintain a high level of confidentiality. The fellow employees should then self-monitor for symptoms (e.g., fever, cough or shortness of breath).

Reference Article

What do we need to do if we are an Essential Business?2020-04-03T11:45:23-07:00

Step 1: Confirm you are an Essential Business

More cities and states across the U.S. are ordering non-essential businesses to shut down in an effort to slow the spread of COVID-19. Does that include your business? Consult your local or state website to review the executive order and guidelines.

Step 2: Notify your employees

Communication with your employees is crucial. Provide information on why your business is considered essential. If this is done in person, follow up with an email or document with the announcement. Provide each employee with a personalized letter identifying them as being employed by an essential business. This should be on company letterhead and have contact information in case they are stopped, and a law enforcement official wants to confirm.

Step 3: Cleaning measures and social distancing

If your business is open to the public, you will want to confirm you are taking the necessary cleaning measures to safeguard your employees and customers. Any business that plans to continue having employees in the office should ensure cleaning measures are taken and adequate supplies are available to all employees to disinfect workspaces and wash hands. All businesses need to enforce social distancing measures as outlined in the local or state executive order.

Step 4: Risk Mitigation and Emergency Leave Policies

The Families First Coronavirus Response Act requires every employer with less than 500 employees to provide Emergency Paid Sick Leave and Emergency Family and Medical Leave to every employee. You will need to have a policy in place by April 1st and have every employee acknowledge that they received the policy.

A Risk Mitigation policy should be in place to communicate to all employees how the company plans to prevent exposure and continue to keep employees safe during the COVID-19 outbreak. Your company may already have an emergency response policy in place; review it and ensure it covers a scenario like COVID-19.

Trüpp has developed COVID-19 specific policies that you can download here.

Step 5: Be flexible

The COVID-19 pandemic is a rapidly developing issue with changes happening by the hour. It is important to stay flexible as a business. This may include allowing employees to work remotely whenever possible, allowing different schedules to accommodate the needs of employees, and even changing your operating hours.

Step 6: Know how to respond

Have a plan in place of what you will do if someone on your workforce is showing symptoms or is diagnosed with COVID-19. For more information, you can read our article on COVID-19 in the Workplace.

Employers should be communicating with their employees that if they are sick, they must stay home. The CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Under updated EEOC guidance for the pandemic, employers can also take an employee’s body temperature but should be aware that some people with COVID-19 do not have a fever.

Currently, those who are experiencing symptoms and are self-isolating can discontinue home isolation once at least three days (72 hours) have passed since recovery defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and, at least seven days have passed since symptoms first appeared.

OSHA regulations state that employers cannot require a doctor’s note from an employee to return to work after showing symptoms. Medical facilities and healthcare providers may be extremely busy and not able to provide documentation in a timely way.

Reference Article 

What is a “significant decline in gross receipts?”2020-04-03T15:35:38-07:00

A significant decline in gross receipts begins with the first quarter in which an employer’s gross receipts for a calendar quarter in 2020 are less than 50 percent of its gross receipts for the same calendar quarter in 2019.  The significant decline in gross receipts ends with the first calendar quarter that follows the first calendar quarter for which the employer’s 2020 gross receipts for the quarter are greater than 80 percent of its gross receipts for the same calendar quarter during 2019.

Reference Article

What is the cost of your leave administration service?2020-10-05T08:42:30-07:00

The cost varies depending upon company size. You can request a customized quote here

What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act?2020-03-28T11:52:42-07:00

The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.

Reference Article

What is the Employee Retention Credit?2020-04-03T13:08:25-07:00

The Employee Retention Credit is a fully refundable tax credit for employers equal to 50 percent of qualified wages (including allocable qualified health plan expenses) that Eligible Employers pay their employees. This Employee Retention Credit applies to qualified wages paid after March 12, 2020, and before January 1, 2021. The maximum amount of qualified wages taken into account with respect to each employee for all calendar quarters is $10,000, so that the maximum credit for an Eligible Employer for qualified wages paid to any employee is $5,000.

Reference Article

What legal responsibility do employers have to allow parents or care givers time off from work to care for the sick or children who have been dismissed from school?2020-03-28T12:33:36-07:00

Covered employers must abide by the FMLA as well as any applicable state FMLA laws.  An employee who is sick, or whose family members are sick, may be entitled to leave under the FMLA.  The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons which may include the flu where complications arise that create a “serious health condition” as defined by the FMLA.

There is currently no federal law covering non-government employees who take off from work to care for healthy children, and employers are not required by federal law to provide leave to employees caring for dependents who have been dismissed from school or child care.  However, given the potential for significant illness under some pandemic influenza scenarios, employers should review their leave policies to consider providing increased flexibility to their employees and their families.  Remember that federal law mandates that any flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status.

Reference Article

What makes the credit “fully refundable?”2020-04-03T15:27:17-07:00

The credits are fully refundable because the Eligible Employer may get a refund if the amount of the credit is more than certain federal employment taxes the Eligible Employer owes.  That is, if for any calendar quarter the amount of the credit the Eligible Employer is entitled to exceeds the employer portion of the social security tax on all wages (or on all compensation for employers subject to RRTA) paid to all employees, then the excess is treated as an overpayment and refunded to the employer under sections 6402(a) and 6413(a) of the Code.  Consistent with its treatment as an overpayment, the excess will be applied to offset any remaining tax liability on the employment tax return and the amount of any remaining excess will be reflected as an overpayment on the return.  Like other overpayments of federal taxes, the overpayment will be subject to offset under section 6402(a) of the Code prior to being refunded to the employer.

Reference Article

What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?2020-03-28T12:05:37-07:00

Private-sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits.  If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including 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.

If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, you may also require your employee to provide you with any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests. For example, this could include a notice that has been 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.

Reference Article

What Relief Options are Available to Employers?2020-04-14T14:12:30-07:00

As the economy reels from the fallout of the Coronavirus, the federal government has passed the Coronavirus Aid, Relief, and Economic Security Act (CARES), to provide relief for struggling employers. This long and very complex law includes provisions to cover a variety of economic and industry needs. Here’s a breakdown of what employers need to know when determining which offering is best suited to their needs.

Employee Retention Credit

The Employee Retention Credit is a fully refundable tax credit for eligible employers that is equal to 50 percent of qualified wages (including allocable qualified health plan expenses) paid to employees. This Employee Retention Credit applies to qualified wages paid after March 12, 2020, and before January 1, 2021. The maximum amount of qualified wages taken into account for each employee during this period is $10,000, equating to a maximum per employee credit of $5,000.

Eligibility

Employers, including tax-exempt organizations, are considered eligible if:

  • Operations were fully or partially suspended due to a coronavirus shut-down order; or
  • Gross receipts declined by more than 50 percent as compared to the same, prior-year quarter.

Determining qualified wages for eligible employers:

  • Averaged more than 100 full-time employees in 2019: Qualified wages are the wages paid to an employee for time that the employee is not providing services due to one of the reasons above.
  • Averaged less than 100 full-time employees in 2019: Qualified wages are the wages paid to any employee during any period of economic hardship described above.

How to Access the Tax Credit

The credit is allowed against the employer portion of social security taxes for all employee wages paid in the corresponding quarter when filing Form 941. Any excess over the employer’s share of social security taxes is treated as an overpayment and refunded to the employer after offsetting other tax liabilities on the employment tax return.

An eligible employer may fund qualified wages by:

  • Accessing federal employment taxes, including those that the eligible employer already withheld, that are set aside for deposit with the IRS for other wage payments made during the same quarter as the qualified wages; or
  • If the anticipated credit for the qualified wages exceeds the remaining federal employment tax deposits for that quarter, the eligible employer can file a Form 7200, Advance Payment of Employer Credits Due to COVID-19, to claim an advance refund for the full amount of the anticipated credit for which it did not have sufficient federal employment tax deposits.

The Employee Retention Credit and Other Relief Programs

  • The amount of qualified wages for which an employer may claim the Employee Retention Credit cannot include the amount of qualified sick and family leave wages for which the employer received tax credits under the FFCRA.
  • An eligible employer may not receive the Employee Retention Credit if the employer receives a Small Business Interruption Loan under the Paycheck Protection Program that is authorized under the CARES Act.

Deferral of Employer’s Share of Social Security Payroll Taxes

Employers can defer payment of the employer’s share of the social security tax they are otherwise responsible for paying (generally a 6.2% tax on wages or earned income) for the 2020 tax year. The deferred employment tax can be paid over the two following tax years, with half of the amount required to be paid by December 31, 2021, and the other half by December 31, 2022.

An employer may not defer their share of social security taxes if they receive a Small Business Interruption Loan under the Paycheck Protection Program that is authorized under the CARES Act.

Paycheck Protection Program

Many small businesses and nonprofits with no more than 500 employees can apply for the Paycheck Protection Program, which is a loan available through the U.S. Small Business Administration (SBA). Eligible borrowers can be approved for a loan through there bank equaling the lesser of $10 million or 2.5 times an employer’s average monthly eligible payroll costs in 2019.

Additional Provisions

  • Eligible borrowers must make a good faith certification that the loan is necessary due to the uncertainty of current economic conditions caused by COVID-19.
  • Allowable uses of loan proceeds include payroll expenses, mortgage, rent, and utility payments.
  • Eligible payroll costs do not include compensation above $100,000 in wages, social security, and Medicare payroll taxes and qualified sick / family leave wages for which a credit is allowed under the Families First Coronavirus Response Act.
  • Eligible borrowers are not allowed to receive duplicative funds for the same uses from another SBA program.
  • For the portion of the loan that is not forgiven, the maximum interest rate is one percent and will have a maximum term of two years.

PPP Loan Forgiveness

Borrowers who meet certain requirements, including 75% of expenses used for payroll costs, are eligible for loan forgiveness under the Paycheck Protection Program. The forgiveness equals the amount spent for payroll costs, interest on mortgages, rent, and utilities by the eligible borrower during the eight-week period following the origination date of the loan and prior to the end of the covered loan period, June 30, 2020.

The amount of loan forgiveness is reduced if there is a reduction in the number of employees or a reduction of greater than 25% in wages paid to employees. However, reductions in employment or wages will not reduce the amount of loan forgiveness if the borrower eliminates the reduction in employees or wages by June 30, 2020.

Economic Injury Disaster Relief (EIDL) Loans and Grants

EIDLs are lower interest loans of up to $2 million, with principal and interest deferment at the administrator’s discretion, that are available to pay for payroll and other operating expenses. Small businesses, with 500 or fewer employees, and many non-profits of any size may be eligible for EIDL loans.

EIDL Grants

These grants provide an emergency advance of up to $10,000 to small businesses and private non-profits harmed by COVID-19 within three days of applying for an EIDL. To access the advance, eligible borrowers first apply for an EIDL and then request the advance. The advance does not need to be repaid but is subtracted from the amount of debt forgiven under the Paycheck Protection Program, if applicable.

The EIDL grant may be used to keep employees on payroll, to pay for sick leave, meet increased production costs due to supply chain disruptions, or pay business obligations, including debts, rent, and mortgage payments.

EIDL Loans and the Paycheck Protection Program

If an eligible borrower receives an EIDL loan or grant, they may also apply for a Paycheck Protection Program loan. However, as mentioned above, any advance amount provided under the EIDL grant will be subtracted from the amount forgiven under the Paycheck Protection Program. Also, eligible borrowers cannot use an EIDL loan for the same purpose as the Paycheck Protection Program loan. This means that the EIDL loan will need to be used for different employees or during a different period than the eight-week period under the Paycheck Protection Program.

Reference Article

What remedies are available to correct violations of the FLSA when employees are not paid on a timely basis?2020-03-26T17:57:33-07:00
  1. The Secretary of Labor may bring suit for back wages and an equal amount as liquidated damages or for interest on the back wages, or the Secretary of Labor may bring suit for an injunction against the failure to pay wages when due.
  2. Employees who have filed complaints or provided information during an investigation are protected under the law. They may not be discriminated against or discharged for having done so. If they are, they may file a suit or the Secretary of Labor may file a suit on their behalf for relief, including reinstatement to their jobs and payment of wages lost plus monetary damages.
  3. An employee may file suit to recover back wages, and an equal amount in liquidated damages, plus attorney’s fees and court costs. Please note that the U.S. Supreme Court has ruled that the Eleventh Amendment prohibits employees of State governments from filing such suits against their State employers for monetary relief in federal courts (under Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)), and in State courts, unless the State waives its sovereign immunity (under Alden v. Maine, 527 U.S. 706 (1999)).
  4. Civil money penalties may be assessed for repeat and/or willful violations of the FLSA’s minimum wage or overtime requirements.
  5. Employers willfully violating the law also may face criminal penalties, including fines and imprisonment.

Reference Article

What should we do if an employee is suspected of having COVID-19?2020-04-03T11:47:12-07:00

Employers should be communicating with their employees that they must stay home if they believe they are sick. The CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e., cough, shortness of breath) upon arrival to work or during their workday should be separated from other employees and be sent home immediately. Under updated EEOC guidance for the pandemic, employers can take an employee’s body temperature but should be aware that some people with COVID-19 do not have a fever.

You can require an employee to stay home if you suspect they have COVID-19. However, employers must be careful to avoid discriminating against individuals of a protected class, including disabled employees, or individuals belonging to particular races or nationalities where the virus may be prevalent. Additionally, OSHA and many state departments of health have released guidelines to employers that they cannot require a healthcare provider’s note for employees who are sick with acute respiratory illness, as this will overwhelm the medical system.

Reference Article

What types of leave can you manage for my organization?2020-10-05T08:35:47-07:00

As a national provider of HR Services, we manage our clients’ state, local, federal, and company-sponsored employee leaves. We continuously monitor leave law updates, so you can have peace of mind that all leaves are managed in accordance with relevant leave laws.

What types of policy options do employers have for preventing abuse of leave?2020-03-28T12:48:29-07:00

Both the FMLA and the Americans with Disabilities Act affect the provision of leave.

Under the FMLA, employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable.  In addition, employers may require employees to provide:

  • medical certification supporting the need for leave due to a serious health condition affecting the employee or a spouse, son, daughter or parent, including periodic recertification;
  • second or third medical opinions (at the employer’s expense);
  • periodic reports during FMLA leave regarding the employee’s status and intent to return to work; and
  • consistent with a uniformly-applied policy or practice for similarly-situated employees, a fitness for duty certification. (Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.) (See also: “May an employer require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?”)

The FMLA also allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances.  (See the U.S. Department of Labor Wage and Hour Division for additional information on the FMLA or call 1-866-487-9243 if you have questions.)

Under the Americans with Disabilities Act, qualified individuals with disabilities may be entitled to unscheduled leave, unpaid leave, or modifications to the employer sick leave policies as “reasonable accommodations.”  These are modifications or adjustments to jobs, work environments, or workplace policies that enable qualified employees with disabilities to perform the essential functions (i.e., fundamental duties) of their jobs and have equal opportunities to receive the benefits available to employees without disabilities.  (See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act for additional information.)

Reference Article

When calculating pay due to employees, must overtime hours be included?2020-04-03T10:57:35-07:00

Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.

However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

If the employee’s schedule varies from week to week, please see the answer to Question 5, because the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee.

Please keep in mind the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave as described in the answer to Question 7.

Please note that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.

Reference Article

When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?2020-03-30T10:54:43-07:00

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Reference Article

When is the operation of a trade or business partially suspended for the purposes of the Employee Retention Credit?2020-04-03T15:36:15-07:00

The operation of a trade or business may be partially suspended if an appropriate governmental authority imposes restrictions upon the business operations by limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to COVID-19 such that the operation can still continue to operate but not at its normal capacity.

Reference Article

Which employees are eligible to take FMLA leave?2020-03-28T12:30:55-07:00

Employees are eligible to take FMLA leave if they work for a covered employer and:

  • have worked for their employer for at least 12 months;
  • have at least 1,250 hours of service over the previous 12 months; and
  • work at a location where at least 50 employees are employed by the employer within 75 miles.

Special hours of service requirements apply to airline flight crew employees and to breaks in service to fulfill National Guard or Reserve military service obligations pursuant to the Uniformed Services Employment and Reemployment Rights Act (USERRA).  (See the U.S. Department of Labor Wage and Hour Division or call 1-866-487-9243 for additional information on FMLA.)

Reference Article

Who is an Eligible Employer?2020-04-03T13:10:42-07:00

Eligible Employers for the purposes of the Employee Retention Credit are those that carry on a trade or business during the calendar year 2020, including a tax-exempt organization, that either:

  • Fully or partially suspends operation during any calendar quarter in 2020 due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to COVID-19; or
  • Experiences a significant decline in gross receipts during the calendar quarter.

Note: Governmental employers are not Eligible Employers for the Employee Retention Credit.  Also, Self-employed individuals are not eligible for this credit for their self-employment services or earnings.

Reference Article 

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Trüpp is an HR company that takes a modern approach to the delivery of HR services. We frame our deep understanding of employment best practices with a commitment to optimizing our clients’ business success. At the end of the day, we’re all about helping your business thrive.

Join the hundreds of HR professionals that attend our free webinars to maintain SHRM and HRCI certification! Trüpp is recognized by SHRM to offer Professional Development Credit (PDCs) for SHRM-CP or SHRM-SCP. Trüpp is an HRCI Approved Provider offering HRCI re-certification credit for most of our online training courses and webinars.

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“During a very stressful time for human resources, we could not be more thankful for the quick information that we were constantly receiving by Trüpp. I sent our representative an email to chat about what this truly means for our small company and what our next steps needed to be. She called me within thirty minutes full of answers and policies we needed to send out to our employees. I cannot explain how thankful we are to be partnered with such an amazing company like Trüpp, that even during crisis times, they truly value their clients.”

Emily Kennedy
Slingshot Concierge Group

“This is definitely not an easy time for small businesses. Trupp has been by my side, helping me mitigate the COVID-19 crisis, along with all of their other tools I use on a regular basis. They are an invaluable partner to me. Always quick to respond to my needs. I don’t know what I would do without them!”

Allison Drake
Uptown Medical Billing, Inc.

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