HR for Health Blog

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COVID-19 Employer Obligations & FAQ

Posted by Lauren Walchek on March 13, 2020

UPDATED 4/02/2020 5:56pm PST

Given the rapidly changing nature of the situation, we will be continually updating this post as more questions come in and new information arises. To help you navigate all the questions, we've categorized all the questions coming in and added a table of contents to the top of this post. If you do not see your question answered, please use the contact information at the bottom of the page to reach out to us.

As the COVID-19 Pandemic continues to grow, you may have questions on how to handle different situations that may arise with your employees. We’ve addressed a few of the commonly asked questions relating to COVID-19 below: 

H.R. 6201 Families First Act

Office Closures

Quarantining & Testing Positive for COVID-19

PTO & Unemployment Benefits

Furlough & Layoff

Wages & Benefits

Webinar and Live Q&A Recordings

 

H.R. 6201, Families First Coronavirus Response Act

  1. What is the “H.R. 6201, FAMILIES FIRST CORONAVIRUS RESPONSE ACT”? 

    3/27/2020: Watch the video where we share vital updates  from the Department of Labor about H.R. 6201 the Families First Coronavirus Response Act.  

    In an effort to keep you informed due to the ever changing landscape, please review the Q&A released by the U.S. Department of Labor as it focuses on the new emergency paid sick leave (EPSL) and emergency paid Family and Medical Leave Act (EFMLA).  

    Please visit our blog "The Families First Coronavirus Response Act & The Impact on Your Practice" for a more in-depth explanation. The Department of Labor also does a great job summarizing the Act and your requirements here.

    The Department of Labor also breaks down the tax credits and reimbursements that you'll receive in response to the FFCRA here. 

    The DOL published a model notice for employers to use to educate employees about the FFCRA’s provisions. You can find the model notice here.

  2. If I have furloughed my employees and they are currently collecting unemployment, how does this overlap with the Emergency Paid Sick Leave and/or Expanded Family Leave? 

    Generally speaking, employees are not eligible for unemployment benefits if you are providing them with paid sick leave or pay for expanded family and medical leave. However, each state’s unemployment program has different eligibility requirements so we recommend that you refer to your state’s unemployment department for further information. Find a link to each state’s unemployment resources here

  3. If my business is closed due to a government order or other reasons related to COVID-19, are my employees eligible for leave under the FFCRA? 

    No. Employees are not eligible for leave under the FFCRA while your business is closed. However, employees are likely eligible for unemployment benefits during your office closure. Find a link to each state’s unemployment resources here

  4. Are the emergency sick leave benefits in addition to my state’s sick leave requirements or any other paid leave I offer? 

    Yes, the emergency sick leave is in addition to any previous sick leave regulations in your city or state, as well as any current time off benefits you offer to your employees. 

  5. I have a new employee that just started with the practice, are they eligible for FFCRA?  

    If your business is not exempt from providing paid sick leave and expanded family and medical leave, all employees are eligible including full-time and part-time employees. While all employees are eligible for paid sick leave regardless of their length of employment, employees must be employed by you for 30 calendar days before they qualify for expanded family and medical leave. According to the Department of Labor, an employee is considered to be employed by the practice for at least 30 calendar days “if they have been on your payroll for the 30 calendar days immediately prior to the day their leave would begin. For example, if an employee wants to take leave on April 1, 2020, the employee would need to have been on your payroll as of March 2, 2020.”. You can read more about the Department of Labor’s FAQs here. 

  6. Do my part time employees receive the full 80 hours for Emergency Paid Sick Leave? 

    A part-time employee should receive a prorated amount of paid sick leave hours based on the average number of hours they usually work in a two-week period. Stated in the Department of Labor’s FAQs, “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.” You can read more about the Department of Labor’s FAQs here. 

  7. Do I need to post anything in my office regarding FFCRA and employee’s rights? What if my employees are working remotely?

    Practices that are covered under the FFCRA must provide employees with a notice detailing employee rights from the Department of Labor. This posting must be posted in a conspicuous place in the practice (i.e., employee break room) or may be provided to employees electronically through email or your HR for Health portal. You can find the notice here.

  8. Can leave be combined between the Emergency Paid Sick Leave and the Extended Family Medical Leave Act?

    The Department of Labor’s FAQs states the following:

    “Employees may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. An employee may take both paid sick leave and expanded family and medical leave to care for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless an employee elects to use existing vacation, personal, or medical or sick leave under your policy. After the first ten work days have elapsed, employees should receive 2/3 of their regular rate of pay for the hours they would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act. Please note that employees can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.”

  9. Can I require that my employees provide me with documentation for the need to take time off for Expanded Family Leave?

    Yes, you may require an employee to provide you with documentation for the need to take time off for expanded family and medical leave. This may include a notice of closure or unavailability from the child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to the employee from an employee or official of the school, place of care, or child care provider. You must retain this documentation and should store all information securely in your HR for Health portal under the employee’s file.

  10. What documentation do I need to give my employees regarding FFCRA?

    You are required to send them the DOL notice here to inform them of their rights under FFCRA. We also suggest sending them the DOL’s Q&A here to answer any questions they may have about their eligibility. This can be emailed to them while the practice is closed and should be posted in a conspicuous place in your practice that all employees can view once the practice is open again. 

 

Office Closures

  1. Do I have to close my practice due to the COVID-19 outbreak? 

    With rapidly changing regulations, the CDC strongly encourages businesses to actively check their state and local health official updates to ensure that they are responding to new regulations in their area in a timely manner. We recommend that you keep yourself updated with both federal and state OSHA requirements as well to ensure you are doing everything you need to in order to protect both your employees and your patients during this time.

    OSHA COVID-19 Guidance

    CDC Business Guidance

    If you are a Dentist, the American Dental Association (ADA) is recommending that you only perform emergency dental procedures.

    ADA Guidance on Continuing to Practice Ethically during COVID-19

    ADA Guidance for what Constitutes a Dental Emergency

    If you are a Dentist located in California, the California Dental Association (CDA) has strongly encouraged that all dental practices only provide life-threatening care.

    CDA Guidance on what Constitutes Life-threatening Procedures

    CDA Guidance on COVID-19

    If you are an Optometrist, Vision Source has clarified the recommendations for routine vs. non-routine treatment. 

    Vision Source Guidance on Routine vs. Non-routine Treatment

  2. What financial assistance/breaks are in place for a small businesses? 

The Small Business Administration is providing an emergency loan application online if you need funds during the COVID-19 pandemic. They are offering very favorable rates right now and have great resources. Please keep in mind that they are asking small businesses to go to them directly for these loans. More information can be found here: here

The Families First Coronavirus Response Act is offering tax credits in response to the wages paid for the Emergency Family Leave & Emergency Paid Sick Leave. The Department of Labor states the following:

"Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the Department of the Treasury’s website." More info here.

The Department of Labor also breaks down the tax credits and reimbursements that you'll receive in response to the FFCRA further here.

Most banks are currently offering deferments on bank loans during this time so we recommend reaching out to your lender if money is tight to see what your options are. You, of course, would need to be able to prove your need for the deferment.

Quarantining & Testing Positive for COVID-19

  1. If an employee self-quarantines because a family member tested positive for COVID-19, does our office still need to shut down and notify patients?

    Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure. If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

    Be sure to keep up with news on the virus and on guidelines or orders from your local public health department on what their mandates/recommendations are. While many states are still allowing regular business to continue (outside of the typical non-essential gatherings) we are seeing many areas and industries, such as dental, highly recommend closures except for emergency procedures so this is something that you'll want to be prepared for should it get to that point in your area.

  2. What measures does our practice need to take to protect our employees and patients? 

    In response to the COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) has released information on their recommendations for this outbreak. More information on their guidance here: https://www.osha.gov/Publications/OSHA3990.pdf

    The CDC has also released a guide for businesses included here: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

PTO & Unemployment Benefits

  1. How does the CARES Act affect my employees’ unemployment benefits? 

    States are waiting on further guidance from the US Department of Labor to complete the necessary programming for the Federal Pandemic Unemployment Compensation. This includes all of the parameters needed to start paying an additional $600 to those receiving unemployment benefits in light of the impacts of COVID-19. For a list of each state’s unemployment guidelines and interaction with the CARES Act (if applicable) please click here.

  2. In light of patient cancellations due to coronavirus, are employees entitled to file for partial unemployment if their schedules or work hours are decreased due to this matter? Are Associate Doctors eligible as well?

    Individual states may have unemployment insurance programs in place, please check your state's unemployment department for more information about what your employees are eligible for during this time. Associate doctors should be classified as employees and therefore, they would be eligible for the same benefits as the rest of your employees. 

  3. Am I eligible for unemployment benefits if I am an employee of the practice?

    If you are an employee of the practice, you can apply for unemployment benefits. If you are not an employee of your practice, you will want to look into your state’s unemployment insurance programs to confirm what their self-employed options are. Please keep in mind that you are being as specific and accurate as possible in your application as an employer because most unemployment offices will be skeptical of owners applying for benefits and may result in an audit of your business. 

  4. Can I as an S-corp owner (owner of my practice) also file for unemployment benefits?

    You are able to file for unemployment benefits if you are considered an employee of your corporation and have been getting paid by the practice as an employee. Please read #3 above as well. 

  5. Are independent contractors (1099) allowed to file for unemployment?

    All employees are of the practice are eligible to apply for unemployment benefits. Because independent contractors are not an employee of the practice, they would need to set up a self employment unemployment bank for themselves. 

  6. Do I have to lay my employees off in order for them to be eligible for unemployment benefits?

    No. Employees are eligible for unemployment insurance benefits due to a reduction of wages so you do not need to formally terminate your relationship with them.

  7. What are the maximum hours an employee can work and still collect unemployment?

    Due to various state regulations, each state’s unemployment program has different requirements. We recommend that you refer to your state’s unemployment department for further information. Find a link to each state’s unemployment department here

  8. If an employee has filed for unemployment due to a reduction in hours but comes into the office to assist in treating patients for emergency care, how does this affect their unemployment?

    Most states will adjust the employee’s unemployment benefits during weeks that they are earning wages. Employees must report these wages earned to ensure full compliance with the unemployment department. Please reference your state’s unemployment website for more information for your state’s partial unemployment program, if applicable. 

  9. Can employees use PTO/Vacation/Sick Leave if they are also collecting unemployment?

    While some states may require the use of PTO prior to receiving unemployment benefits, most states have expanded their requirements due to the COVID-19 outbreak. Generally speaking, the department won’t consider employees as unemployed if they are still receiving wages. If employees are earning PTO, they must report these wages to the unemployment department during their unemployment period so that the department can adjust their wages accordingly. Due to different regulations for each state, we recommend checking your state’s unemployment insurance information for further clarification on how they adjust wages due to PTO/Vacation/Sick Leave benefits. 

  10. Should I lay my employees off before April 1st? *Please note the DOL updated the date to 4/1/2020

For more information regarding terminations, lay-off's, and furloughs please see our video here explaining what factors you should take into consideration during this time:

 

Furlough & Layoff

  1. What is the difference between layoff and furlough? 

    A layoff is similar to a termination in that it is a separation of employment (meaning they are no longer employees, and lose their benefits and protections) but it differs because it’s based purely on business reasons and not performance. In a layoff, you are essentially telling an employee that your hope is to rehire them when the business reopens and is able to support them, although it is not a guarantee. 

    Furlough is a temporary reduction of an employee’s hours, days, or weeks due to business needs. Furlough can be either a reduction in hours or a full shut down. Employees are still considered active during a furlough and are protected under employment rights. Employees may also continue to receive benefits during this time, depending on your benefit policies and requirements. 

  2. Does a furlough become a layoff after a certain amount of time? 

    Some states have regulations that if you furlough your employees for a specific amount of time without pay, it is then considered an official lay off. We believe they will be more relaxed on these regulations right now since they want employees to stay active and have made other exceptions due to this pandemic, such as the WARN waiver order. Until there is further guidance from the Labor Commissioner on this, we suggest that you hold off on taking further action if you are furloughing your employees. 

  3. What if I already laid my employees off? Do I need to rehire my staff? If I do decide to rehire my team, what are the steps I need to take?

    Once you have weighed your options with the guidance of your CPA and have come up with a plan for your employees moving forward, you can rehire your employees as soon as you’d like to. If you decide to rehire your staff, you’ll need them to all sign new hire documents in order to be in full compliance. Within the HR for Health software, all of your state’s required documents will be automatically sent to employees upon hire. 

  4. If I decide to furlough my employees, what are the steps I need to take?

    You’ll want to be sure to keep open communication with employees during this temporary furlough. We suggest using our template to employees letter to inform employees of your temporary closure, the reason for it, and what their options are during this time. Employees are considered active during the furlough so final pay requirements do not need to be followed and they may also continue to receive benefits during this time, depending on your benefit policies and requirements. Consistent communication with your employees is key to help put them at ease until you are able to open the practice again.

    You’ll also want to send them the DOL notice here to inform them of their rights under FFCRA, as well as the DOL’s Q&A here to answer any questions they may have about their eligibility. This can be emailed to them while the practice is closed and should be posted in a conspicuous place in your practice that all employees can view once the practice is open again. 

  5. If I decide to lay my employees off what are the steps I need to take?

    If you decide to move forward with layoffs, it will require that you provide the proper termination documents and final paychecks to your employees in accordance with your state’s final pay laws. We understand that most of your employees are not physically in the practice during this time. You can send their final paycheck with delivery confirmation along with two copies of each form with a stamped return envelope so the employees can mail their signed copies back to you.

    HR for Health provides all of the necessary termination documents and guidelines for final pay in accordance with your state’s regulation, to get more information contact us here.

  6. Can I lay some employees off vs. the entire team? 

    Prior to deciding who to lay off, it’s important to evaluate the business reasons for terminating some employees over others in an effort to lower any risk associated with the layoffs. Due to possible discrimination claims, we suggest guidance from an HR Specialist or employment attorney prior to taking any action. 

Business Loans/Resources/Tax Credits

  1. What financial assistance/breaks are in place for small businesses?

    The CARES Act has expanded resources for small businesses due to COVID-19. Please check in with your CPA on further guidance on your options based on your specific practice needs. Live Oak Bank has more info about COVID-19 small business loans.

  2. If I am not obligated to pay my employees under FFCRA but I would like to, can I still qualify for the tax credits? What if I give paid time under the FFCRA before April 1st? 

    If you are not obligated to pay employees for leave under the Families First Coronavirus Response Act (FFCRA), you are not eligible for the tax credits. In addition, any time provided under the FFCRA prior to April 1st will not be retroactively credited to the Act requirements. 

    More information from the DOL on this here: “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.


Wages & Benefits

  1. If the office is closed or employee hours are reduced, can we ask the employees to use their paid sick leave/vacation/PTO?

    Yes, if your employee handbook says that employees must use sick leave/PTO/vacation (i.e., paid leave) prior to taking unpaid leave, you can ask them to use their available hours. However, if you are located in a state that has mandatory sick leave requirements, you may not be able to force them to take sick leave hours.

  2. Can I allow an employee to take more PTO than they currently have available and apply the hours as a draw against their future PTO balance?

    Yes, you may allow employees to “borrow” PTO and earn it back when the office reopens. If you allow an employee to do so, we recommend thoroughly documenting the details of this instance through the HR for Health absence request feature. Please keep in mind that employees may leave the practice prior to earning these hours back and many states have strict requirements on deductions on final paychecks. We advise getting something in writing with the employee to determine how they will earn these hours back. Please also keep your state and local sick leave/PTO/deductions in mind when drafting these agreements. 

  3. Can I allow an employee to “gift” their PTO hours to another employee?

    Yes. If you allow an employee to do so, we recommend thoroughly documenting the details of this instance through the HR for Health absence request feature. 

  4. Do I have to offer medical benefits during the temporary closure?

    If you are currently offering health insurance to your employees, we strongly discourage making any changes to your plan at this time. This includes canceling or stopping payments to the insurance company on behalf of the practice’s contribution and employee contribution. However, to learn more about both your short and long term options, it is best to contact your health insurance carrier to learn more about your particular plan and your obligations under the plan.

  5. What do we do about the employee portion of medical benefits if our employees aren't receiving a paycheck for a few weeks?

    It is common for employees to incur deductions on each paycheck if an employee is responsible for contributing a certain portion towards their health insurance under your plan. Since the employee will not be receiving a paycheck from the practice, we recommend working with employees on a deduction plan to pay back the owed amount over a mutually agreed upon timeframe once the office opens again. It is best to document this meeting and send the employee a breakdown of each future payroll date and the amount that will be deducted in excess of normal for each date so that they can sign off on it. To learn more about your options for health insurance payments and regulations in your state, please contact your health insurance provider. 

  6. Are employees that are on-call from home entitled to be paid for being available?

    It depends on the position and what they are doing while on-call at home. If it is an associate doctor that is at home waiting to be called in for emergency treatment, is able to use the on-call time as they wish, and is not engaged in any work it is likely they do not need to be paid. If the associate doctor is conducting appointments with patients virtually (i.e., telemedicine) or have to follow strict standby instructions set by the practice during their on-call time then yes, it is likely they need to be paid.

  7. Do we have any requirement to pay doctor associates that are normally only paid a percentage of their production if the office is temporarily closed?

    Should you need to close your business in response to COVID-19, you are not required to pay any employees for this time off while your office is closed. This includes doctor associates if they are not engaging in any work for you during the office closure. You may allow them to use any of their paid sick leave/Vacation/PTO during this time to help supplement their income or they may file for unemployment. Read our blog regarding the FFCRA to learn more about employee's pay under the Act once your business re-opens.

  8. If I have to close my practice due to patient cancellations or government mandated regulations, do I have to pay my employees?

    Should you need to close your business or modify your office schedule in response to COVID-19, you are not required to pay any employees for this time off while your office is closed. You may allow them to use any of their paid sick leave/Vacation/PTO during this time to help supplement their income or they may file for unemployment. Read our blog regarding the FFCRA to learn more about employees' pay under the Act once your business re-opens.

    As mentioned above, employees may be eligible for unemployment benefits as many states are expanding their requirements to support employees during the COVID-19 outbreak. Employees may also be eligible for disability benefits if they are affected themselves, as well as Paid Family Leave if they need to take time off to care for a family member, if applicable in your state.

  9. A patient is diagnosed with virus and quarantined - we are advised to also quarantine. Does this fall under Workers' Compensation or do we have to pay employees for this time? 

    We recommend reaching out to your Workers' Compensation provider on what the procedure is for your specific policy to address community-acquired diseases, especially if they were acquired in the vicinity of the practice’s property.

    As an employer, you are not legally obligated to pay employees while the office is closed and they are not working.

  10. An employee or their family member is diagnosed with the virus - we are now advised to quarantine and need to shut down the office. Who pays employees in this situation? 

    As an employer, you are not legally obligated to pay employees while the office is closed and they are not working. If employees have sick leave available, they can use that time in addition to their available PTO/vacation time. Once those benefits are exhausted, the time taken off from work is unpaid. If they can certify with a doctor’s note that they are under a doctor’s care or are ordered to be quarantined, employees can file claims for disability insurance benefits, if applicable in your state.   

    Employees that have not been exposed to COVID-19 but are affected by the practice being shut down can apply for unemployment insurance benefits for the duration of the Practice shutdown.

  11. I have employees that need to stay home with their kids due to school closures and other employees that are worried about coming into work because of the risk of exposure. Do we have to pay them for this time?

    There’s no easy solution here as the situation with the virus is unprecedented. It’s understandable for employees to be nervous during this time and it’s important to be empathetic, especially as schools continue to close across the country.  

    If an employee feels uncomfortable coming to work or cannot come to work because of childcare issues then you can allow them unpaid time off until the Families First Coronavirus Response Act goes into effect on April 1st, if your practice is open for business. Until this date, they can also use their sick leave/vacation/PTO if they have any to cover some of their lost income. Be open to listening to employee’s concerns and try to accommodate them if possible. Read our blog regarding the FFCRA to learn more about employees' pay under the Act.

  12. If I have my salaried employees on a reduced schedule, do I have to pay them their normal salary?

If they are exempt, federal regulations state that you must pay them for their full salary if they complete any work during that specific work week. You’ll want to keep this in mind to avoid jeopardizing their exempt status under the Fair Labor Standards Act (FLSA). If you are located in California, please check out CDA's article for more guidance on this topic here

For more information regarding exemption requirements, please review the Department of Labor’s information here.

Webinar and Live Q&A Recordings

DISCLAIMER: Due to the rapidly changing guidance on these regulations, some information from these webinars may no longer be up to date. Please note the date of the recording prior to watching.

  1. Here is a recording from Ali Oromchian in a CDA webinar discussing the frequently asked questions from CDA members surrounding the COVID-19 crisis. You can find the webinar recording here: CDA Webinar (recorded March 20,2020)

  2. Here is Ali Oromchian in a Henry Schein webinar, as he discusses the impact of COVID-19 on your practice, discusses the Families First Coronavirus Response Act (FFCRA/H.R. 6201), along with answering some questions. You can find the webinar recording here: Henry Schein Webinar (recorded March 20,2020)


Updates on this virus are rapidly changing and employers should check the Center for Disease Control and Prevention (CDC) website for the most up to date information. We will continue to post updates and answers to other questions as they come in. 


We know this is a stressful time, especially as a business owner and we are here to support you along the way. 

If you are a current HR for Health client and have additional questions, please reach out to our team by calling 877-779-4747. Please keep in mind that due to an influx in questions related to the COVID-19 outbreak, our response time may be slower than usual but we will get back to you as soon as we can! 

If you are not a current HR for Health client and have additional questions, please schedule an HR consultation with us by booking time here or calling us at 877-779-4747, option 1. 

 


 

Quick note: This is not to be taken as legal or HR advice. Since employment laws change over time and can vary by location and industry, consult a lawyer or HR expert for specific guidance. Learn about HR for Health's HR services

Topics: compliance, employment law, workplace, general hr, covid-19, coronavirus

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