The most frequently asked questions for employers regarding returning to practice and bringing back employees (or not) during COVID-19 are outlined below. *Please check back as we continue to update this blog post.
Table of Contents:
Bringing Employees Back
Q: What if my employees cannot return to work due to lack of childcare but I need them in place to be able to open up my practice?
A: Because an employee being unable to work due to lack of childcare is a valid reason for taking leave under FFCRA, it is important to engage in an interactive process to accommodate the employee when possible. This could mean a modified schedule for the employee, allowing the employee to work from home, having the employee take intermittent leave if possible, etc. For practice owners with less than 50 employees, there may also be the option for you to utilize the small business exemption under FFCRA. In addition, it’s important to remember that FFCRA wages are reimbursable for the practice.
Q: Some of my employees are in a protected class (i.e., they are over 65, pregnant, immunocompromised) and I am worried about my liability if they come back to work in the office during this time. Should I delay the start date for these employees to return?
A: The Department of Labor has indicated that a practice owner cannot postpone an employee’s start date as a result of their condition if the employee, and/or their healthcare provider, has indicated they are ready and able to work. If an employee is open to coming to the office and has received clearance to do so, then it’s advisable to allow them to do so to avoid liability.
Q: Do I need to bring all my employees back to work at once?
A: No. When deciding which employees to bring back first, it’s important to start by analyzing your cash flow and business/scheduling needs. Practice owners should understand what work will be needed immediately, as well as in the future, and identify which job positions are needed to support the current and future needs of the practice. You will also want to base the decision on who to bring back by objectively evaluating your team and should clearly link back to business reasons. Examples of things to consider when conducting this analysis are the employees’ tenure/seniority, skillset, and schedule availability.
Q: What steps do I need to take to notify and bring back employees that were furloughed?
A: We recommend proactively reaching out to employees and providing them with a letter outlining your plans to reinstate their employment, along with any changes to expect once they return. A template of this letter can be accessed here. Furloughed employees do not need to complete new hire paperwork as their employment was not previously terminated.
Q: What steps do I need to take to notify and bring back employees that were laid off?
A: Returning laid off employees will be considered “new employees” so in addition to providing each employee with a letter outlining your plans to rehire them, they should also be provided a new offer letter. A template of this letter can be accessed here.
Q: Do I have to bring my employees back at the same compensation they were receiving prior to being furloughed or laid off?
A: No. Should you identify the need to change an employee’s compensation, this can be communicated to the employee through the return to work letter for furloughed employees or the return to work letter for laid off employees. Please keep in mind if you have the PPP loan, there are requirements around your employee's compensation so please be sure to confirm all wage reductions with your CPA to ensure you are eligible for forgiveness
Q: Can I temporarily modify an employee’s schedule, rate of pay, and/or job duties?
A: Yes. Should you identify the need to modify an employee’s schedule, rate of pay, and/or job duties, this can be communicated to the employee through the return to work letter for furloughed employees or the return to work letter for laid off employees.
Q: Can I screen my employees to make sure they are healthy when coming to work? If so, how?
A: Yes. Although it would not usually be permissible, during this time you may screen your employees to make sure they are healthy when coming to work. This should include taking the employee’s temperature at the beginning of their workday and retaining documentation for each employee. It’s important to keep this documentation stored securely and separately from the employee’s personnel file. NOTE: HR for Health customers should use their HR for Health portal to store this information in a secure and paperless environment.
Accommodating FFCRA Leave
Q: Who is eligible for leave under the FFCRA?
A: All employees are eligible for two weeks of paid sick time for specified reasons (see FAQ below) under the FFCRA. All employees that have been employed and on payroll for at least 30 calendar days prior to the date their leave would begin are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.
Q: What are the qualifying reasons for an employee to take leave under the FFCRA?
A: There are two types of leave required by the FFCRA; paid sick leave and expanded family and medical leave. An employee qualifies for expanded family leave if the employee is unable to work due to the need to care for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19. This includes working from home.
An employee qualifies for paid sick time if the employee is unable to work (this includes working from home) due to a need for leave for the following 6 reasons:
The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
The employee has been advised by a health care provider to self-quarantine related to COVID-19;
The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
The employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
The employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
The employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Q: How does the small business exemption apply to practice owners under the FFCRA?
A: Practice owners with fewer than 50 employees may be exempt from providing leave for an employee to care for a child if doing so would jeopardize the ongoing viability of the business. This exception is only for leave situations when the employee is caring for a child whose school or place or care is closed due to COVID-19 reasons. A practice owner may claim this exemption if an authorized officer of the business has determined that:
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;
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
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.
Q: What do I need to do if I elect to use the small business exemption?
A: Although further clarification is still needed, the Department of Labor states the following:
To elect the 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.
Q: How should an employee request leave under FFCRA?
A: An employee can request leave either orally or written and should provide you with the following information:
- Dates for requested leave
- Reason for leave
- Statement that they are unable to work because of the stated reason for leave
- Name of government entity issuing quarantine or isolation order (if applicable)
- Name of health care provider issuing guidance for self-quarantine (if applicable)
- For childcare related requests:
- Name of child
- Name of school/childcare provider that has become unavailable
- Statement that there is no other suitable person available to care for child
Q: What are the documentation requirements for leave under FFCRA to ensure compliance?
A: The information listed out in the previous FAQ should be documented each time leave is requested. NOTE: HR for Health customers have access forms to be used for requesting leave under the FFCRA. If an employee submits a request to the practice verbally, you should document all details of the request on the employee’s behalf. You should also document your response to each leave request and if you are denying leave, you will want to document the reason for doing so. Practice owners should retain all documentation for four years, regardless of whether the leave was granted or denied.
Q: What are the documentation requirements for IRS reimbursement for leave under FFCRA?
A: Practice owners must retain records and documentation related to the leave (outlined above) as well as documentation to show how you determined the amount to pay an employee for their leave. In addition, you should retain documentation to show how you determined the amount of qualified health plan expenses that you allocated to wages. Lastly, you should retain the Forms 941, Employer's Quarterly Federal Tax Return, and 7200, Advance of Employer Credits Due To COVID-19, and any other applicable filings made to the IRS requesting the credit. To learn more about tax credits under the FFCRA, you can access the IRS’ FAQs here.
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!
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HR for Health is one of the nation’s leading Human Resources Management Systems (HRMS) used by small to mid-sized practices. HR for Health has provided the following complimentary articles to ensure you have a game plan when addressing complex HR matters.
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