Coronavirus Resources for Employers

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There is a great deal of information being disseminated through the media, leaving employers confused and with many questions, including questions about telecommuting for those employees who are able to do so and leave for those who are not, along with the wage and hour implications of either scenario. Cascade is here to help provide clarity around the employment-related issues your business faces. As a first source, Cascade recommends using the Centers for Disease Control (CDC).

On this webpage, we will provide updated information about the virus, proactive steps employers can take and answers to your FAQs.

More Support for Our Members

AnswerSource Helpline
Our teams are ready and available to answer your COVID-19 related questions. Contact us at 503-585-4320 or [email protected].

Guides, FAQs, Webinars and Survey Data
Members have access to guidance and best practices produced by Cascade’s compliance team.

Email Alerts
Cascade will update our Members on an ongoing basis as new information emerges.

Consulting
If you need in-depth help navigating COVID-19 issues including workforce planning, employee communications, and reductions in force, Cascade is here to support you.


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COVID-19 Alerts

Upcoming Webinars

Wednesday, July 22 -
          Lunchtime Talks: Benefits of Membership with Cascade

Thursday, July 23 -
          Lunchtime Talks: Employment Law HR Compliance

July Alerts – (Current as of date published)

7/13 - Governor Brown Extends Face Coverings to Outdoors Effective July 15th
7/9 - Clackamas, Multnomah, and Washington Counties' Phase 2 Reopening Paused

June Alerts – (Current as of date published)

6/30 - Believe It or Not: Another Update to Governor Brown's New Face Covering Requirements for Businesses Effective July 1st
6/30 - Updated Oregon Face Covering Guidance for Business, Transit, and the Public Effective July 1st
6/29 - Important Second Update to Governor Brown’s New Face Covering Requirements for Businesses
6/26 - Important Update to Governor Brown’s New Face Covering Requirements for Businesses
6/26 - Governor Brown Issues New Face Covering Requirements for Businesses
6/18 - Governor Brown Announces New Face Covering Requirements and Phase 2 Information
6/12 - Oregon Puts One Week Pause on County Applications for Reopening
6/04 - New Changes to Paycheck Protection Program Create More Flexibility
6/03 - Oregon Governor Brown Announces Phase 2 Requirements
6/01 - Governor Brown Issues Statement on Phase 2 of Reopening

May Alerts – (Current as of date published)

5/22 - Survey Results: Return to Work Preparations
5/18 - SBA Releases PPP Loan Forgiveness Instructions
5/14 - Governor Brown Announces Counties Approved for Phase One
5/13 - EEO Data Collections Delayed Due to COVID-19
5/07 - Oregon Announces Phase-One Reopening Beginning May 15th

April Alerts – (Current as of date published)

4/29 - Oregon Employment Department Issues Guidance Regarding Return to Work and UI Questions
4/28 - COVID-19 Employee Pulse Survey
4/24 - Oregon Lifting Some Restrictions and More Federal Funding
4/20 - DOL Clarifies Unemployment Insurance Benefit Eligibility Under CARES
4/17 - Survey Results: COVID-19 Workplace Realities
4/03 - SAIF Offers Coronavirus Worker Safety Fund for Policyholders
4/02 - DOL Publishes Rules Implementing the FFCRA
4/01 - IRS Issues Guidance Regarding Required Documentation for EFML and EPSL
4/01 - BOLI Issues Emergency Exemption to Maximum Working Hours in Certain Manufacturing Establishments

March Alerts – (Current as of date published)

3/30 - FFCRA: IMPORTANT Update for Small Employers
3/27 - Senate Passes CARES Act: What Employers Need to Know
3/26 - Survey Results: COVID-19 Employer Responses
3/26 - New Emergency Order Issued By the Oregon Dept. of Consumer and Business Services
3/25 - New Required Poster for Families First Coronavirus Response Act (FFCRA)
3/25 - April 1 New Effective Date for Families First Coronavirus Response Act (FFCRA)
3/24 - New Dedicated COVID-19 Resource Center For Employers
3/23 - Governor Issues Stay-at-Home Directive
3/20 - Federal Government Allows Remote Form I-9 Verification
3/19 - Survey: Employer Response to COVID-19
3/19 - Temporary OFLA Amendments for COVID-19
3/19 - Emergency COVID-19 Bill Signed into Law: What Employers Need to Know
3/13 - Coronavirus and Employer Obligations: Your Questions Answered
3/12 - COVID-19 Preparedness at Cascade: We've Got You Covered
3/02 - What Employers Need to Know About the Coronavirus

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COVID-19 Resources

FAQ Links | Webinar Updates | COVID-19 Surveys | Sample Documents | Website Links


Cascade FAQs on COVID-19

FFCRA Definitions

  1. Q: What is Emergency Paid Sick Leave (EPSL)?
  2. Q: What is Emergency Family Medical Leave (EFML)?
  3. Q: How are full and part-time employees defined under EPSL and EFML?
  4. Q: How is son or daughter defined under the FFCRA?
  5. Q: What does “subject to a quarantine or isolation order” mean under the EPSL?
  6. Q: What does “advised by a healthcare provider to self-quarantine,” mean for EPSL purposes?
  7. Q: What does it mean to be “seeking a medical diagnosis for COVID-19 related symptoms” for EPSL purposes?
  8. Q: What “individuals” are covered for purposes of providing care for an individual under EPSL?
  9. Q: Who is considered a healthcare provider or emergency responder for purposes of exclusion from EPSL and EFML?

FFCRA Eligibility

  1. Q: Am I a covered employer under FFCRA?
  2. Q: What employees are eligible for EPSL?
  3. Q: What employees are eligible for EFML?
  4. Q: I have less than 50 employees. Am I excluded from complying with the Emergency Paid Sick Leave and Emergency Family Medical Leave Acts?
  5. Q: If my employer closes its workplace during the effective period of the FFCRA but believes it will reopen at some time in the future, are employees eligible to use EPSL or EFML?
  6. Q: Are employees entitled to EPSL, EFML, or Oregon Sick Leave if our business closes due to lack of work?
  7. Q: If I reduce an employee’s hours, can they take EPSL or EFML for the hours that they were supposed to work?
  8. Q: Can an employee use sick leave if they’re just fearful of coming to work and getting sick?

FFCRA Application

  1. Q: Do you have any time off examples showing how EPSL, EMFL and other leaves are applied?
  2. Q: Can EPSL and EFML be taken intermittently?
  3. Q: Can an employer require an employee to take EFML concurrently with other leaves available such as PTO or vacation?
  4. Q: Are the EFML and EPSL requirements retroactive?
  5. Q: What records should employers keep for an employee’s use of EPSL and EFML?
  6. Q: What reinstatement rights do employees have after taking EPSL and/or EFML?
  7. Q: How do you count the “first 10 days” under EFML?
  8. Q: Is there any situation in which an employee could take more than 12 weeks of EFML?
  9. Q: What if an employee has already used some of their leave under traditional FMLA?
  10. Q: Do I have to post a notice to employees about the FFCRA?
  11. Q: May employers discipline employees who are in violation of the company’s attendance policy due to COVID-19 related absences?
  12. Q: Can I require a doctor’s note if an employee has been out ill?
  13. Q: I am an employer covered by predictive scheduling. How does COVID-19 interact with this law?
  14. Q: If an employee is home because their child’s school is closed (which is covered under both EPSL and EFML), how do I track and pay for this time since it is covered under both?
  15. Q: What documents does an employee need to give their employer to take EPSL or EFML?

FFCRA Pay

  1. Q: How much do I have to pay employees taking EPSL?
  2. Q: How much do I have to pay employees taking EFML?
  3. Q: How do I know how much to pay under EPSL and EFML if my employee’s schedule varies week to week?
  4. Q: Can an employee take 80 hours of EPSL for their own self-quarantine and then another amount of EPSL for another covered reason?
  5. Q: If the employee is only receiving 2/3 of their regular rate under EPSL or EFML, can I require them to use their accrued and unused paid time off to make them “whole?”
  6. Q: How do you determine an employee’s regular rate of pay under the FFCRA?
  7. Q: Do I have to pay for other qualifying reasons for FMLA now?
  8. Q: Do I include overtime in determining how much to pay employees under the EFML and EPSL?
  9. Q: Can I require an employee to supplement their pay from EPSL or EFML with company provided paid time off benefits such as sick or PTO?
  10. Q: What relief do we have if we cannot afford to pay leave required under the Emergency Family and Medical Leave and/or Emergency Paid Sick Leave?
  11. Q: Can I require my employee to use their sick time for a COVID-19 related reason before using the Emergency Paid Sick Leave?

FLSA

  1. Q: Can I reduce wages for exempt employees without jeopardizing their FLSA status?
  2. Q: Can I switch to paying my exempt employees hourly during this pandemic?
  3. Q: Does paying an exempt employee at only 2/3 their regular rate for EPSL and EFML violate the FLSA salary rules?

Layoffs & Unemployment Benefits

  1. Q: Has Oregon waived the one-week waiting period for Unemployment Insurance Benefits?
  2. The CARES Act passed the additional $600 weekly unemployment insurance benefit. What is this?
  3. Q: How soon will individuals get the Federal $600 weekly COVID-19- related Compensation Benefit?
  4. Q: Are employees eligible for unemployment benefits if the business temporarily shuts down due to COVID-19?
  5. Q: Can laid off or terminated employees get unemployment benefits if they are still receiving employer-paid leave, vacation, sick time, or Paid Time Off (PTO)s?
  6. Q: Are employees who are required to stay home due to COVID-19 related illness or exposure eligible for unemployment benefits?
  7. Q: What happens if a former or terminated employee is sick and/or quarantined with COVID-19? Can they still receive unemployment benefits?
  8. Q: Will a laid off or terminated employee be eligible for unemployment benefits if the employer remains open but they don’t want to come to work because of the risk of exposure to the coronavirus?
  9. Q: What is the difference between a furlough and a layoff?
  10. Q: Can employees use Oregon Sick Leave if our business shuts down?

Health & Safety

  1. Q: How should we address sick employees?
  2. Q: How do we address employee concerns about co-workers who appear sick and/or who may be from areas with known coronavirus cases?
  3. Q: May an employer restrict business travel?
  4. Q: Can I require an employee that has recently traveled (personal or for business) to a high risk area to stay at home for a period of time after they return?
  5. Q: Can I take the temperature of employee’s prior to them coming in to the workplace?
  6. Q: May employers encourage or require employees to work remotely as a disease prevention strategy?

FFCRA Tax Credits

  1. Q: What are the tax credits available to employers under the FFCRA?
  2. Q: What is the amount of credit available under the FFCRA?
  3. Q: What are qualified wages under the FFCRA?
  4. Q: Does the healthcare plan expenses cover both employer and employee portions for purposes of qualified wages under the FFCRA?
  5. Q: When can we start claiming the credit under the FFCRA?
  6. Q: How do we claim the tax credits under the FFCRA?
  7. Q: What records should employers keep for an employee’s use of EPSL and EFML for tax credit purposes?
  8. Q: Can we claim FFCRA credits and the Employee Retention Tax Credits under the CARES Act?
  9. Q: Can we claim FFCRA credits if we also have a PPP loan?

CARES Act: Paycheck Protection Program Loan

  1. Q: What is the Paycheck Protection Program?
  2. Q: Am I eligible for the Paycheck Protection Loan?
  3. Q: How do I apply for the Paycheck Protection Program?
  4. Q: What is the maximum amount of the PPP loan?
  5. Q: Will the PPP Loan be forgiven?
  6. Q: How long does it take for the PPP loan to be forgiven?
  7. Q: How much of my PPP loan will be forgiven?
  8. Q: What if I have already laid off employees before taking the PPP loan?
  9. Q: Am I responsible for interest on the forgiven loan amount?

CARES Act: Economic Injury Disaster Loan

  1. Q: What are Economic Injury Disaster Loans (EIDL)?
  2. Q: Am I eligible for an EIDL loan?
  3. Q: What can an EIDL loan be used for?
  4. Q: How do I apply for an EIDL loan?
  5. Q: If I already have an EIDL, can I apply for PPP?
  6. Q: What is the Economic Injury Disaster Loan Grant?

CARES Act: Employee Retention Tax Credit

  1. Q: What is the Employee Retention Tax Credit?
  2. Q: Who is eligible for the Employee Retention Tax Credit?
  3. Q: What does qualified wages for the Employee Retention Tax Credit mean?
  4. Q: How does FFCRA tax credits and PPP intersect with the Employee Retention Tax Credit?
  5. Q: How do I claim the Employee Retention Tax Credit?

CARES Act: Payroll Deferral

  1. Q: Who is eligible for Payroll Tax Deferrals?
  2. Q: What does the Payroll Tax Deferral provide to employers?
  3. Q: How does the Payroll Tax Deferral work with PPP?
  4. Q: How do I account for this deferral?

CARES Act: SBA Express Bridge Loan

  1. Q: What is the SBA Express Bridge Loan?
  2. Q: What can the SBA Express Bridge Loan be used for?
  3. Q: What are the terms of the SBA Express Bridge Loan?

CARES Act: SBA Debt Relief

  1. Q: What is the SBA Debt Relief?
  2. Q: What if I have an existing disaster loan?

Webinar Updates (Members Only)

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March Webinars – (Current as of date recorded)

COVID-19 Webinar – Employer Questions Answered (3/25/2020)
COVID-19 Webinar – Employer Questions Answered (3/26/2020)
COVID-19 – Employer Questions Answered – Slides (3/26/2020)
COVID-19 Webinar – End of Week Update (3/27/2020)

April Webinars – (Current as of date recorded)

FFCRA and CARES Act Update (4/1/2020)
FFCRA and CARES Act Update – Slides (4/1/2020)
FFCRA, CARES Act and Workforce Planning Update (4/8/2020)
FFCRA, CARES Act and Workforce Planning Update – Slides (4/8/2020)
Key Employee Benefits Issues to Consider During COVID-19 (4/9/2020)
Key Employee Benefits Issues to Consider During COVID-19 – Slides (4/9/2020)
Understanding FFCRA Tax Credits and CARES Act Funding Options (4/15/2020)
Understanding FFCRA Tax Credits and CARES Act Funding Options – Slides (4/15/2020)
COVID-19 OSHA and Safety Update (4/22/2020)
COVID-19 OSHA and Safety Update – Slides (4/22/2020)
COVID-19 Employer Update (4/29/2020)
COVID-19 Employer Update – Slides (4/29/2020)

May and June Webinars – (Current as of date recorded)

COVID-19 - Legal and Practical Realities of Returning to Work (5/6/2020)
COVID-19 - Legal and Practical Realities of Returning to Work – Slides (5/6/2020)
COVID-19 - Oregon's Reopening Plan – Slides (5/13/2020)
COVID-19 Update – Slides (5/27/2020)
COVID-19 Update – Slides (6/10/2020)
COVID-19 Update – Slides (6/24/2020)

Surveys

5/22 - Return to Work Preparations
4/17 - COVID-19 Workplace Realities
3/26 - COVID-19 Employer Response Survey Report

Sample Documents (Members Only)

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Return to Work

Face Mask/Shield/Covering County Specific Checklist (NEW)
Visiting Other Workplace Requirements (NEW)
Phase 2 Checklist - Bars and Restaurants (NEW)
Phase 2 Checklist - Indoor Outdoor Entertainment Facilities (NEW)
Phase 2 Checklist - Recreational Sports (NEW)
Phase 2 Checklist - Spas Pools Sport Courts (NEW)
Phase 2 Checklist - Zoos Museums Outdoor Gardens (NEW)
Reopening Phase One - All Employer Checklist
Retail Reopening Phase One Checklist
Bars and Restaurants Reopening Phase One Checklist
Outdoor Recreation Reopening Phase One Checklist
Personal Services Reopening Phase One Checklist
COVID-19 Employee Leave Survey
Cost Containment Checklist
Sample Telecommuting Agreement
Telecommuting - Detailed Policy
Sample Telecommuting Checklist
Sample Welcome Back to Work Letter
Emergency Paid Sick and Family Medical Leave Policy (FFCRA)
Oregon Sick Leave: COVID-19 Addendum
OFLA and FMLA: COVID-19 Addendum
COVID-19 Teleworking and Flex Work - Generic Policy
COVID-19 Health, Safety and Social Distancing Policy
COVID-19 Illness Protocol Policy
Confidentiality and Non-Discrimination Policy
SAMPLE Visitor Health Screening Questionnaire
SAMPLE Employee Health Screening Questionnaire
SAMPLE Employee Temperature Screening Process Guide

Sample Policies

Sample Emergency Family and Medical Leave and Emergency Paid Sick Leave Policy
Sample Time off and Remote Work Options Communication – April 1, 2020
COVID-19 Safety Plan Policy
Employee Face Mask Policy (NEW)
Visitor and Employee Face Mask Policy (Updated 6/26/2020)

Sample Employee Notices

Employee Notice of Unemployment Compensation
Sample Notice of Workplace Exposure to a Communicable Disease
Sample Essential Employee Notice
Sample Reduction in Force Letter
Sample Layoff Memos to Employees

Guides, Forms and Factsheets

Sample EPSL and EFML Leave Request Form
FFCRA Compliance Flow Chart 
Leave Tracking Form - EPSL/EFML
Unemployment Benefits Factsheet
COVID-19 Safety Checklist
COVID-19 Prevention and Protection Steps
Preparing for Layoff Extended Checklist
Sample Memo to Managers on Layoff Selection Criteria
COVID-19 Employee Termination and Benefits Considerations
Tips for Surviving Market Swings During COVID-19
Sample Supervisor FAQs
Re-opening Business Safety Plan

Website Links

Guidelines for Reopening Oregon

Face Mask/Shield/Covering Requirements (NEW)
Face Mask/Shield/Covering Sign (NEW)
Phase 2: Guidance for Indoor and Outdoor Entertainment Facilities (NEW)
Phase 2: Guidance Restaurants and Bars (NEW)
Phase 2: Guidance for Swimming Pools, Spas and Sports Courts (NEW)
Phase 2: Guidance for Recreational Sports (NEW)
Phase 2: Guidance for Zoos, Museums and Outdoor Gardens (NEW)
General Guidance for Oregon Employers
COVID-19 County Prerequisites
General COVID-19 Guidance for the Public
OHA Signage - Hand Hygiene
OHA Signage - COVID-19 Symptoms
OHA Mask Guidance
Guidance on Resumption of Non-Emergent and Elective Procedures in Veterinary Facilities
Guidance on Resumption of Non-Emergent and Elective Procedures at Hospitals
Guidance on Resumption of Non-Emergent and Elective Procedures at Ambulatory Surgical Centers
Guidance on Resumption of Non-Emergent and Elective Procedures in Medical and Dental Offices, and Other Health Care Settings
Phase 1: Guidance for Retailers
Phase 1: Guidance for Personal Services
Phase 1: Guidance for Restaurants/Bars/ Breweries/Tasting Rooms and Distilleries
Phase 1: Guidance for Outdoor Recreation Organizations

FFCRA and DOL Resources

Families First Coronavirus Response Act
DOL Guidance on Emergency Family and Medical Leave and Paid Sick Leave under FFCRA
DOL Q&A on FFCRA
FFCRA Required Poster
FFCRA Required Poster FAQs
DOL Rules Implementing the FFCRA
DOL Guidance For Group Benefit Plans (NEW)

CARES Act Resources

Small Business Guide to the CARES Act
Paycheck Protection Program for Small Businesses
Paycheck Protection Program Fact Sheet
US Treasury FAQs on Paycheck Protection Program (NEW)
CARES Act Law (NEW)
CARES Act Interim Final Rule (NEW)

Unemployment Benefits

Oregon Employment Department – COVID-19 Guidance
Employment Department Benefit FAQ (NEW)
Oregon Work Share

Tax Credit Resources

FFCRA Tax Credit Information
IRS Guidance and FAQs on Calculating and Obtaining COVID-19 Tax Credits
IRS Form 7200 – Advance Payment of Employer Credits Due to COVID-19

Safety

OSHA Guidance on Preparing the Workplace for COVID-19

Executive Directives

Oregon Executive Directive on Public Gatherings, School Closures and Limited Healthcare Procedures
Stay Home, Save Lives Executive Order
Oregon State Police Response to Stay-at-Home Orders

CDC Resources

CDC General Employer Guidelines
CDC COVID-19 Travel Updates
CDC Cleaning and Disinfection Guidelines (NEW)
CDC Isolation and Discontinuation of Isolation Guidelines (NEW)

Oregon Health Authority Resources

Oregon Health Authority – COVID-19 Updates
Oregon Health Authority Guidance for Employers

Additional Web Resources

World Health Organization – COVID-19 Information
Department of Homeland Security – Business Continuity Plan
Oregon WARN Requirements
BOLI Temporary Rule Relaxing Maximum Hours of Work (Manufacturing)
EEOC COVID-19 Guidance (NEW)

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Families First Coronavirus Response Act (FFCRA)

Emergency Family and Medical Leave (EFML)

Summary

The Emergency Family and Medical Leave (EFML) requires employers to provide expanded paid family and medical leave to eligible employees who are unable to work due to school or childcare closures. Note: Lack of childcare and/or school closures is the only reason EFML can be used.

Specifically, EFML is available when an employee is unable to work or telework due to caring for their son or daughter whose school or place of care is closed or whose child care provider is unavailable due to a public health emergency, defined as an emergency with respect to COVID-19, declared by a Federal, State, or local authority.

EFML applies to different sets of employers and employees than traditional FMLA.

EFML is paid protected leave (whereas FMLA provides unpaid protected leave).

Effective Date

Effective April 01, 2020 until December 31, 2020.

Eligible Employers

Private-sector employers with 500 or fewer employees.

Public agencies of any size.

Small Employer Protections

Small businesses with fewer than 50 employees can seek an EFML exemption if an authorized officer of the business determines that:

  • The use of EFML would result in the business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • The employee’s leave from work would create 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 enough workers available who are able, willing, and qualified to perform the work done by the employee or employees requesting EFML, and this work is needed for the small business to operate at a minimal capacity.

Employers will need to maintain documentation in support of this determination.

Eligible Employees

Any full-time or part-time employee who has been employed for at least 30 days prior to the request. This includes employees who were laid off or otherwise terminated on or after March 1, 2020, had worked for the employer for at least thirty of the prior 60 calendar days, and were subsequently rehired or otherwise reemployed by the same employer.

Exemption: Employers may elect to exclude employees who are health care providers or emergency responders from taking EFML.

Leave Allotment

Up to 12 weeks of paid and protected time off.

If an employer allows, EFML may be taken incrementally in any increment of time. This applies to telework as well as reporting to a work-site. However, intermittent leave use is not required.

Relationship to OFLA and FMLA

EMFL expands the reach of FMLA. In short, FMLA eligibility and qualifications remain the same except for one notable exception:

When an employee is unable to work or telework due to the need to care for children under the age of 18 when school or place of care is closed, or child care is unavailable due to a public health emergency.

The first two weeks (which typically equates to ten workdays) of EFML are unpaid. However, unlike traditional FMLA, after the first two weeks of EFML, the remaining period of up to 10 weeks must be paid.

If the employer and employee qualify for standard FMLA, outside of the Emergency Family and Medical Leave exception, the leave time would drain from the employee’s 12 week FMLA allotment.

It is important to note an employee diagnosed with a confirmed case of Coronavirus may still qualify under FMLA and/or OFLA as a serious health condition for themselves or their family member. If so, employers should follow the normal family medical leave process.

As a reminder, aside from this amendment, employers with 50 or more employees are covered by FMLA. For an employee to be eligible for FMLA, aside from this amendment, they must have been employed at least 12 months (not necessarily consecutive), and worked at least 1250 hours. For OFLA, employers with 25 or more employees in Oregon are covered. Oregon employees are eligible if they work 180 days for the employer and average 25 hours per week.

Relationship to Paid Leave

As mentioned above, an eligible employee is entitled to take up to twelve weeks of leave under EFML. The first two weeks (usually ten workdays) of this leave are unpaid, though an employee may substitute paid sick leave under EPSL or paid leave under the employer’s preexisting policies, including Oregon Sick Leave, for these two weeks of unpaid leave.

Unlike FMLA leave taken for other reasons, the following period of up to ten weeks of EFML must be paid. Specifically, after the first two weeks of leave, EFML must be paid at two-thirds the employee’s regular rate of pay.

For each day of leave, the employee receives compensation based on the number of hours they would otherwise be normally scheduled to work.

An eligible employee may elect to use EPSL concurrently with EFML but the employer cannot require it. Additionally, if the employee uses EPSL for the first two weeks (usually 10 days) of EFML, an employer cannot require an employee use paid leave, including to supplement wages. The employer and employee can agree to supplement. After the first two workweeks (usually 10 workdays) of EFML, employer require employees to concurrently use EFML and company provided leaves such as PTO, if that type of leave would be available to employees for the reasons leave is being taken under EFML.

The total EFML payment per employee for this ten-week period is capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSL.

Tax Credits for Employers

CARES Act provides refundable tax credits for employers for each calendar quarter in an amount equal to 100 percent of the wages paid by employers for EFML.

For EFML, the amount of qualified family leave wages taken into account for each employee is capped at $200 per day and $10,000 for all calendar quarters. If the credit exceeds the employer’s total liability under section 3111(a) for all employees for any calendar quarter, the excess credit will be refunded to the employer.

Job Protections

Eligible employees have reinstatement rights to the same or equivalent position.

There is an exception for employers with fewer than 25 employees where position does not exist due to economic conditions or other changes in operating conditions of the employer due to the public health emergency. What this means is still unclear and hopefully will be detailed in future rulemaking by the DOL.


Oregon Family Leave Act (OFLA) Expanded

Oregon’s Bureau of Labor and Industries (BOLI) has issued a temporary order expanding the reach of the Oregon Family Leave Act (OFLA) in response to COVID-19.

Effective Date

March 18, 2020 through September 13, 2020.

Eligible Employers

Employers with 25 or more employees in Oregon (no change).

Eligible Employees

Employees who have worked for a covered employer for 180 days, averaging 25 hours per week (no change).

New Eligible Reason for OFLA

Eligible employees can utilize OFLA for:

Emergency care for their child whose school or place of care has been closed in conjunction with a public statewide health emergency, which COVID-19 qualifies as.

If an employee is diagnosed with a confirmed case of COVID-19 or the employee needs to provide care for a family member diagnosed with COVID-19, it may still qualify OFLA as a serious health condition for themselves or their family member. If so, employers should follow the normal family medical leave process.


Emergency Paid Sick Leave (EPSL)

Summary

EPSL provides employees paid sick time when unable to work, including remotely, because:

  1. The employee is subject to a federal, state, or local quarantine or isolation related to COVID-19;
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to one of the two reasons above; (Note: This reason is not just limited to family members. It specifically states to care of an “individual.”)
  5. The employee is caring for their son or daughter if the school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions;
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

This law is in addition to Oregon Sick Leave.

Effective Date

Effective April 01, 2020 until December 31, 2020.

Eligible Employers

  • Private-sector employers with 500 or fewer employees
  • Public agencies of any size
  • Any entity that is not a private entity and anyone acting directly or indirectly in the interests of the employer. It is unclear as to what types of organizations the last two will apply.

Note: This is different than Oregon Sick Leave employer eligibility which applies to almost all employers in Oregon even those with more than 500 employees.

Small Employer Exception:

Small businesses with fewer than 50 employees can seek an EPSL exemption for reasons due to school or place of care closures when doing so would jeopardize the viability of the small business as a going concern if:

  • The use of EPSL would result in the business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • The employee’s leave from work would create 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 enough workers available who are able, willing, and qualified to perform the work done by the employee or employees requesting EPSL, and this work is needed for the small business to operate at a minimal capacity.

Note: This is the only exemption for small businesses. Employers will need to maintain documentation in support of this determination.

Accordingly, even employers with less than 50 employee must still make EPSL available for the following reasons:

  • The employee is subject to a federal, state, or local quarantine or isolation related to COVID-19;
  • The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • The employee is caring for an individual who is subject to one of the two reasons above;
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

Eligible Employees

Applies to all current employees regardless of length of employment.

Employers may elect to exclude employees who are health care providers or emergency responders.

Note: This is different than normal Oregon Sick Leave eligibility, which is not required to kick in until after 90 days of employment.

Paid Leave

Full-time employees receive up to 80 hours of paid leave. Part-time employees receive a number of hours equal to the number of hours that such employee works, on average, over a two-week period.

This paid sick leave is available to employees for immediate use. For reasons 1, 2, 3 listed above, employers must pay employees at their regular rate of pay, which is capped at $511 per day and $5,110 in aggregate. For reasons 4, 5, 6 listed above, employers must pay two-thirds of employee’s regular rate of pay, which is capped at $200 per day and $2,000 in the aggregate.

An employer may not require an employee to use other paid leave provided by the employer before the employee uses EPSL, nor may an employer require the employee involved to search for or find a replacement employee to cover the hours during which the employee is using EPSL.

Leave Allotment

As mentioned above, a full-time employee is entitled to 80 hours of paid sick leave, and a part-time employee is entitled to the “number of hours that such employee works, on average, over a 2-week period”.

The DOL defines a full-time employee as an employee who is normally scheduled to work at least 40 hours each workweek.

If the employer agrees, an employee may take EPSL intermittently, in any agreed increment of time, while the employee is teleworking. However, if the employee cannot telework – incremental time is only available solely to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, because of reasons related to COVID-19. This has to do to with public safety.

Relationship to Oregon Sick Leave

An employer may not require an employee to use other paid leave (such as Oregon Sick Leave or vacation) before the employee uses EPSL provided under this law.

In contrast to Oregon Sick Leave, where employers can limit use until after 90 days of employment, employees may use paid sick leave immediately under this law. Additionally, under Emergency Paid Sick Leave, all private employers with fewer than 500 employees are covered (besides exceptions listed below). In contrast, Oregon Sick Leave applies to all employers in Oregon – the leave is paid unless employers have less than 10 employees in Oregon or 6 employees in Portland.

Similar to Oregon Sick Leave, EPSL does not have to be paid out upon separation. Employers are also not allowed to use any time off provided to employees prior to the effective date of this law toward an employee’s entitlement under this law.

Job Protections

In line with Oregon Sick Leave, employers are prohibited from discharging, disciplining or discriminating against employees who use paid sick time under this law.

Violations

Employers that do not comply with the requirements of the EPSL will be treated as a “failure to pay minimum wage” under FLSA. Denying or interfering with protected leave could also result in additional violations and claims such as discrimination and retaliation.

Some Helpful Clarifications

EPSL for Reason #1: The employee is subject to a federal, state, or local quarantine or isolation related to COVID-19.

  • Quarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.
    • An employee may take EPSL only if being subject to one of these orders prevents them from working or teleworking. The question is whether the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order.
    • An employee subject to one of these orders may not take EPSL where the employer does not have work for the employee. This is because the employee would be unable to work even if they were not required to comply with the quarantine or isolation order.
  • Paid at 100 percent up to 80 hours.
  • This only applies at the individual level. This reason cannot be used if the business is shut-down due to a federal, state or local quarantine order.

EPSL for Reason #2: The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.

  • The advice to self-quarantine must be based on the health care provider’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19.
  • Self-quarantining must prevent the employee from working. Therefore, if an employee can telework under this reason, EPSL is not allowed.
  • Paid at 100 percent up to 80 hours.

EPSL for Reason #3: The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

  • Symptoms that could trigger this are: fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention (CDC).
  • EPSL for this reason must be limited to the time the employee is unable to work because they are taking affirmative steps to obtain a medical diagnosis.
    • An employee who is waiting for the results of a test who is able to telework may not take EPSL. However, an employee who is unable to telework may continue to take paid sick leave under this reason while awaiting a test result.
  • An employee may continue to take leave while experiencing any of the symptoms specified above.
  • Employee may take leave after testing positive for COVID-19, regardless of symptoms experienced, provided that the health care provider advises the employee to self-quarantine and this would be tracked under reason #2.
  • Paid at 100 percent up to 80 hours.

EPSL for Reason #4: The employee is caring for an individual who is subject to either: a Federal, State, or local quarantine or isolation order; or (b) has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.

  • Applies only if “but for” a need to care for an individual, the employee would be able to perform work for their employer.
    • Therefore, an employee caring for an individual may not take paid sick leave if the employer does not have work for them.
    • Employee may not take EPSL for someone the employee has no personal relationship. Rather, the individual being cared for must be an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if they self-quarantined or was quarantined.
  • Paid at 2/3 for up to 80 hours.

EPSL for Reason #5: The employee is caring for their son or daughter if the school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions.

  • Employee must be able to perform work for their employer “but for” the need to care for their son or daughter, which means an employee may not take EPSL if the employer does not have work for them.
  • An employee may take paid sick leave to care for their child only when the employee needs to, and actually is, caring for their child.
  • An employee cannot take leave if another suitable individual—such as a co-parent, co-guardian, or the usual child care provider—is available to provide the care the employee’s child needs.
  • Paid at 2/3 up to 80 hours.

EPSL for Reason # 6: The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

  • This has yet to be clarified except for the fact that it applies if an employee is unable to work because the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Tax Credit for Employers

For EPSL, a refundable tax credit for employers equal to 100 percent of qualified paid sick leave wages required to be paid by the Emergency Paid Sick Leave Act that are paid by an employer for each calendar quarter. The tax credit is allowed against the tax imposed by section 3111(a) of the Internal Revenue Code (the employer portion of Social Security taxes).


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CARES Act

Paycheck Protection Program

As we previously alerted, the Coronavirus Aid, Relieve, and Economic Security (CARES) Act was signed into law on March 27, 2020. Along with enacting Individual Cash Payments, Expanded Unemployment Insurance Compensation, Emergency Paid Family and Medical Leave Amendments, the CARES Act also provides small businesses with 500 or fewer employees with emergency grants and a forgivable loan program.

The Small Business Paycheck Protection Program under CARES (Division A, Title I, Section 1102) applies to small businesses, nonprofit organizations, veterans organizations, or Tribal businesses with 500 or fewer employees and/or if such organizations meet the US Small Business Administration’s size standards. The purpose of the Paycheck Protection program is to provide fully federally funded loans to small businesses as an incentive for small businesses to keep their employees on the payroll instead of layoffs, reducing employees’ hours, reduction in workforce, or any similar actions.

Loans with this program will be administered by Small Business Administration for payroll and other expenses from February 15, 2020 through June 30, 2020.

The loans can only be used for the following expenses:

  • Payroll costs
  • Costs related to group health care benefits during periods of paid sick, medical or family leave, and insurance premiums
  • Employee salaries, commissions, or similar compensations
  • Mortgage interest payments
  • Rent
  • Utilities
  • Interest on any other debt obligations that were incurred before the covered period

Payments made under the FFCRA are excluded expenses since those are eligible for tax credits.

The loan amounts are the lesser of two and a half times average monthly payroll costs in the prior year or $10,000,000. Loan payments will be deferred for a minimum of six and a maximum of 12 months. Loans are fully guaranteed with none of the normal Section 7 fees or personal guarantees.

Another significant feature of this program is loan forgiveness. Loan amounts may be forgiven up to the full principal amount of eligible expenses an employer has in the 8-week period following the funding date of the loan. Eligible expenses include: payroll, mortgage interest, rent and utilities.

But, it’s not without a catch. Loan forgiveness will be reduced if:

  • The employer reduces its workforce during the 8-week period as compared to previous periods OR
  • The employer reduces salary or wages paid by more than 25% during the period compared to the most recent quarter, unless the employer re-hires all employees laid off on or after February 15th or increases reduced wages by June 20, 2020.

The term of the loans will be a maximum of 10 years at a maximum 4 percent interest rate, with six months (and up to one year) deferral of principal and interest payments.

The application deadline for these loans is June 30, 2020. Organizations interested in this program should consult with their financial institutions.

Expansion of Unemployment Compensation Benefits

The CARES Act also provides federal unemployment insurance assistance for unemployment, partial unemployment, or inability to work due to COVID-19. Specifically, the federal government will provide qualifying individuals with unemployment insurance payments of $600 per week (up to 4 months until July 31st), which is in addition to that individual’s unemployment insurance payments administered by the state.

Moreover, the CARES Act also provides for an additional 13 weeks of continued $600 weekly payments extending from the traditional 26 weeks to a total of 39 weeks.

The unemployment insurance assistance also extends to self-employment individuals, gig workers, independent contractors and freelancers, all of whom historically would not qualify for such benefits.

In order to be eligible for these benefits, individuals must show they are unemployed, underemployed or unable and unavailable to work because:

  • They have been diagnosed with COVID-19 or are experiencing symptoms of COVID-19 that require a medical diagnosis.
  • A member of their household has been diagnosed with COVID-19.
  • They are providing care for a family member or member of their household who has been diagnosed with COVID-19.
  • A member of their household for which they have primary caregiving responsibility is unable to attend school or another facility that has been closed as a direct result of the COVID-19 public health emergency and because of this closure they are unable to work.
  • They are unable to work because of a quarantine imposed as a result of the COVID-19 public health emergency.
  • They are unable to work because they have been advised to self-quarantine by a health care provider.
  • They were scheduled to start a job but are unable to do so as a result of the COVID-19 public health emergency.
  • They have become a “major support for a household” because the main income provider in the household has died as a direct result of COVID-19.
  • They quit their job as a direct result of COVID-19.

The 13-week extension also does not apply to normal unemployment benefits for Eligible Employees. The extension only applies to individuals that fall within the above definition.

Individuals that are receiving any other form of paid leave such as EPSL, EFML or other company provided benefits such as PTO are not eligible for these benefits. Benefits are also not available to individuals that have the ability to be paid while working remotely or teleworking.

The CARES Act also allows the states to waive the one-week waiting period normally required. States doing this will receive a full reimbursement of all costs associated with waiving the waiting period.

This portion of the CARES Act also establishes a process where the federal government will fund states to reimburse non-profits, federal agencies and Native American tribes for half of the costs incurred for unemployment benefits.

These funds are payable to individuals by the state and reimbursed by the federal government. These payments also do not count against an employer’s unemployment insurance account.

Employee Retention Tax Credit

The CARES Act also offers a refundable “employee retention tax credit” for 50% of the qualified wages paid each calendar quarter between March 12, 2020 and December 31, 2020. This credit is not available to employers receiving loans under the Paycheck Protection Program. However, the credit is available to employers receiving tax credits under the FFCRA. Tax-exempt organizations are also eligible for this credit.

Eligible employers are those whose:

  • Operations were fully or partially suspended due to a COVID-19 related “shut-down order,” or
  • Gross receipts declined by more than 50% when compared to the same quarter in the previous year

Employers can receive immediate credits by reducing their required deposits of payroll taxes that have been withheld from employees' wages by the amount of the credit. For employers with 100 or fewer employees only the first $10,000 in qualified wages per eligible employee are covered so the maximum credit is $5,000 per employee. For employers with more than 100 employees qualified wages are limited to wages paid to employees unable to perform work due to COVID-19.

Payroll Tax Deferral

Under the CARES Act, employers can defer deposits of the employer portion of Social Security taxes on wages through December 31, 2020. If loans granted under the Small Business Loans under the CARES Act were forgiven, then this deferral is not available. 50% of the repayment will be required by December 31, 2021. The remaining 50% is due no later than December 31, 2022.


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Tax Credits for Paid Sick and Paid Family Medical Leave

This law provides refundable tax credit for each calendar quarter in an amount equal to 100 percent of the wages paid by employers for Emergency Family Medical Leave and Emergency Sick Leave.

For EFML, the amount of qualified family leave wages taken into account for each employee is capped at $200 per day and $10,000 for all calendar quarters. If the credit exceeds the employer’s total liability under section 3111(a) for all employees for any calendar quarter, the excess credit will be refunded to the employer.

For EPSL, a refundable tax credit for employers equal to 100 percent of qualified paid sick leave wages required to be paid by the Emergency Paid Sick Leave Act that are paid by an employer for each calendar quarter. The tax credit is allowed against the tax imposed by section 3111(a) of the Internal Revenue Code (the employer portion of Social Security taxes).

The FFCRA credit also includes the employer’s cost of providing health care coverage to employees during a leave under EFML and EPSL. This applies to the amount the employer paid toward maintaining health plan coverage of an employee on such a paid leave which was excluded from the employee’s gross income for federal income tax purposes. So the cost of the group health plan coverage for an employee on such a leave is added to the wages paid for the qualifying paid leave.

The IRS provides the following as an example of how this will work:

If an eligible employer paid $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $5,000 of the $8,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $3,000 on its next regular deposit date.

If an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments and file a request for an accelerated credit for the remaining $2,000.

More information on these tax credits is available from the IRS.


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Traditional Family and Medical Leave Act Issues and Obligations

Oregon Family Leave Act and Family and Medical Leave Act (OFLA/FMLA)

Employers who are covered by the Oregon Family Leave Act (OFLA) federal Family and Medical Leave Act (FMLA) must provide job-protected leave and other benefits to an eligible employee who misses work due to a serious health condition of the employee’s own or a close family member. An employee’s illness caused by coronavirus may or may not qualify as a serious health condition, depending on the circumstances.

Flu Is Not Typically a “Serious Health Condition”

The flu and common cold do not typically qualify as serious health conditions under the OFLA/FMLA, unless complications arise. Likewise, an employee out sick with coronavirus may not have a serious health condition under the OFLA/FMLA. In this case, employers should not count the absence against an employee’s 12 weeks of OFLA/FMLA, leave. Doing so could violate the OFLA/FMLA. Remember, however, absences that are not considered a serious health condition, may still qualify under the, EPSL and/or Oregon Sick Leave.

Coronavirus with Complications May Be a Serious Health Condition

Coronavirus can amount to a serious health condition if complications arise from the illness, leading to, for example, hospitalization or incapacitation.

Where an employee has complications arising from coronavirus or the flu, employers covered by the OFLA/FMLA, must provide the employee (if eligible) with certain job protections and reinstatement rights while the employee is out on leave. The employer should also keep track of the leave and deduct it from the employee’s 12 weeks of allotted OFLA/FMLA leave.

Requiring Fitness-for-Duty Certification to Return to Work

Employers may require an employee who has been out on OFLA/FMLA leave due to coronavirus to satisfy any of the following before returning to work:

  • Provide a doctor’s note clearing the employee to return to the workplace.
  • Submit to a medical examination.
  • Remain symptom-free for a specific period of time before returning to work.

Employers should apply any policy or practice uniformly and treat employees in similar situations the same. For example, if an employer asks one employee who has been out sick to submit a doctor’s note, the employer should require the same of all employees who have been out sick with pandemic influenza before returning to work.

However, please note that the CDC has stated that employers may be advised to relax return-to-work doctor’s notes requirements, depending on the availability of health care professionals during the pandemic outbreak.


Oregon Sick Leave

Oregon law requires employers to allow employees to accrue, use, and generally carryover up to 40 hours of paid sick leave (unpaid if fewer than 10 employees or fewer than 6 employees in Portland) per year for the following reasons:

Oregon sick leave is available for the following purposes:

  • Your own illness, injury, or health condition, including time off for medical diagnosis, care, treatment, and preventive care;
  • Care for your family member with an illness, injury, or health condition, including time off for medical diagnosis, care, treatment, and preventive care;
  • For purposes allowed under OFLA, such as bereavement leave, caring for a newborn child or newly adopted/foster child, or sick child leave, regardless of whether the employee is eligible for OFLA leave and regardless of whether the company is a "covered employer" under OFLA;
  • For any purpose allowed under Oregon's domestic violence, harassment, sexual assault, or stalking law; or
  • A public health emergency, including:
    • Upon an order of a general or specific public health emergency, or when the Company requires you to be away from the workplace by law or rule for health reasons.
    • Closure of the employee’s place of business, or the school or place of care of the employee’s child, by order of a public official due to a public health emergency;
    • A determination by a lawful public health authority or a health care provider that the presence of the employee or the family member of the employee in the community would jeopardize the health of others

COVID-19 related diagnosis or symptoms would be a qualifying reason under Oregon Sick Leave (OSL). Additionally, COVID-19 related symptoms of an employee’s family member would also be a qualifying reason under OSL if the employee needs to take time off to care for their family member due to their illness.

Oregon Sick Leave also covers absences due to the closure of a school, daycare or business due to a public health emergency, of which COVID-19 qualifies. Accordingly, absences up to 40 hours would be protected for these reasons under OSL if an employee has time available.

Remember, employers cannot require eligible employees to use OSL before using their time available under EPSL. OSL may be used for reasons not covered under EPSL and would apply only after an eligible employee has exhausted EPSL.


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Americans with Disabilities Act Issues and Obligations

The ADA protects qualified employees with a disability from discrimination in the workplace. Employers covered by the ADA must consider whether an employee who becomes ill with coronavirus has a disability within the meaning of the ADA, entitling the employee to certain protections and benefits. Employers should also check applicable state disability discrimination laws for different or additional legal requirements.

Employers must not violate the ADA’s privacy provisions while managing their workforces through a pandemic or in preparing for one. The ADA prohibits disability-related inquiries or medical examinations of current employees, except in limited circumstances, discussed below.

Coronavirus Can Be a Protected Disability

Generally, seasonal flu and other conditions of a short duration are not considered a disability under the ADA. However, complications arising from illness caused by coronavirus may lead to the condition becoming an ADA-covered disability.

The ADA also protects employees who are regarded as having a disability. Because seasonal flu and coronavirus typically cause only a transitory impairment, employees who become ill are not covered under the ADA’s prohibition against discriminating against employees who are regarded as having a disability. However, if an employee’s pandemic-related illness complicates or becomes associated with a different condition, such as an underlying health problem, that could give rise to a “regarded as” claim.

Duty to Make Reasonable Accommodation for Employee with Disability

Under the ADA, employers must make a reasonable accommodation for an employee with a disability, including providing leave or adjusting a disabled employee’s attendance requirements. An employer is not required to provide an accommodation to a qualified employee with a disability if the employee’s disability poses a direct threat; that is, a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

Employer’s Ability to Make Disability-Related Inquiries and Medical Examinations

An employer may not make a disability-related inquiry or require a medical examination of a current employee, unless it is both: job-related and consistent with business necessity. An employer may make a disability-related inquiry or require a medical examination if, before making a medical inquiry, the employer reasonably and objectively believes that an employee’s medical condition either impairs the employee’s ability to perform essential job functions or poses a direct threat. The employer’s reasonable belief must be based on objective evidence that is known to the employer or reasonably available.

During a pandemic, an employer does not have to wait until an employee develops symptoms to ask questions about exposure to a pandemic influenza during recent travel.

Whether a Pandemic Poses a Direct Threat to Safety in the Workplace Depends on Severity

Whether a pandemic such as coronavirus represents a direct threat to safety in the workplace depends on its severity. In determining the severity of a pandemic, an employer should rely on the latest information from the CDC, other federal public health agencies, and state and local health departments.

While public health recommendations may change over the course of a pandemic, as well as across states, employers are expected to:

  • Exercise their best efforts to obtain public health advice that is both current and appropriate for their location.
  • Make reasonable assessments of their own workplace conditions.

The CDC’s or other public health agencies’ assessment of a pandemic would provide the objective evidence needed for a disability-related inquiry or medical examination.

Actions Employers Can and Cannot Take in Pandemic Preparedness and Response

In response to the 2009 H1N1 pandemic, the EEOC answered common questions ADA-covered employers may have about preparing for and responding to a pandemic. The questions and answers are instructive for other pandemics.


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Wage & Hour Law

Must we keep paying employees who are not working?

Under the Fair Labor Standards Act (FLSA), this answer depends on whether an employee is exempt or non-exempt. For non-exempt employees, FLSA minimum-wage and overtime requirements attach to hours worked in a workweek. Therefore, non-exempt employees who are not working are not entitled to pay.

For employees classified as exempt from overtime under FLSA, the analysis is different. Exempt employees are paid on a salary basis, and, in most cases, if an exempt employee performs any work at all during the workweek, the employee must be paid their entire salary for that particular workweek. There can be exceptions to this general rule. Some of the key exceptions relevant to a pandemic are outlined here, and employers should consult with an employment attorney regarding such exceptions. If an employer makes an improper deduction from an exempt employee’s salary or refuses to pay an exempt employee for days not worked, it may lead to a loss of the FLSA exempt classification of the employee, entitling the employee to overtime pay.

However, if an employee is eligible for any of the paid leave described above, they may be eligible for continued pay.

Permissible Deductions from Exempt Employee’s Salary

If an exempt employee misses work during a pandemic, whether an employer can deduct the exempt employee’s salary depends on various factors, including:

  • Who initiates the absence, the employee or employer
  • The employee’s reason for missing work
  • Whether the employer has a bona fide sick leave plan, policy, or practice of providing compensation for salary loss caused by sickness or disability.

When Employee Is Ill and Employer Has a Bona Fide Sick Leave Plan

If an exempt employee misses work because of illness or disability and the employer has a bona fide sick leave policy, plan, or practice of providing compensation for salary loss caused by illness or disability, the employer may deduct an exempt employee’s salary, but only in full-day increments. For example, if an employee misses two-and-a-half days due to illness, the employer may only deduct two days of pay from the exempt employee’s salary.

When Employee Misses Work for Personal Reasons

If an exempt employee misses work due to personal reasons, other than sickness or disability, the employer may deduct in full-day increments. For example, if the employee misses two days of work for personal reasons, the employer may deduct two days of pay. If the exempt employee is absent for one-and-a-half days, the employer may only deduct the equivalent of one day’s salary.

When Exempt Employee Takes FMLA Leave

An employer may make deductions from the salary of an exempt employee taking unpaid FMLA leave. The employer may pay employees their proportionate salary only for time actually worked. The employer may also make salary deductions for any hours taken as intermittent or reduced FMLA leave during the exempt employee’s workweek without affecting the exempt status of the employee.

When Exempt Employee Takes OFLA and/or FMLA Leave

If an exempt employee takes leave that is covered under both OFLA and FMLA or OFLA only, employers may not make partial day deductions.

Impermissible Deductions from Exempt Employee’s Salary

When Employee Is Ill and Employer Does Not Have a Bona Fide Sick Leave Policy

If an exempt employee misses work due to sickness or disability and the employer does not have a bona fide sick leave policy, the employer may not deduct an exempt employee’s pay for any time, unless the employee misses an entire workweek.

When Employer Initiates Absence of Exempt Employee

An employer may not deduct an exempt employee’s pay when the employee reports ready to work. For example, if the employer initiates an absence by insisting an employee with a sick relative stay away from the workplace during a pandemic, the employer may not deduct the exempt employee’s pay, unless the employee misses an entire workweek.

Use of Accrued Vacation or Paid Time Off

There is nothing in the FLSA that prohibits employers from requiring absent employees to use accrued paid time off, even in partial day increments, so long as the employer still pays exempt employees their full salary for a workweek. The FLSA views PTO and vacation as fringe benefits that the employer has the option of providing or not providing.


 

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Workplace Layoffs, Shutdowns and Business Closures

Workplace Shutdowns

If your organization has to shut down for a period of time, your obligation to pay depends on whether an employee is exempt or non-exempt. If an employer shuts down their offices/facilities, non-exempt employees do not need to be paid when work is not being performed.

For exempt employees, the general rule is that exempt employees need to be paid for all weeks in which some work is performed. Therefore, if offices/facilities are shut down for partial weeks, exempt employees receive their full salary. However, if offices/facilities are shut down for a full week, employers are not required to pay exempt employees for weeks where no work is performed.

If the business is temporarily closed due to a public health emergency such as COVID-19, if eligible, employees would be able to use their available time under Oregon Sick Leave.


Layoffs

If employers do have to close facilities or lay off employees due to COVID-19, employers need to determine whether the Worker Adjustment and Retraining Notification Act (WARN) applies. WARN is a federal law that requires employers with 100 or more employees to provide written notice at least 60 calendar days before a plant shutdown or covered mass layoff. The law does have an exception to the 60-day notice provision for unforeseeable business circumstance that is caused by some sudden, dramatic, and unexpected action or conditions outside the employer's control.

There is a good argument that COVID-19 would be considered an unforeseeable business circumstance. However, even with that exception triggered, employers still give employees notice of such layoffs or closures as soon as practicable.

If the layoff is temporary, meaning it will be less than 35 days, an employer’s final paycheck obligations will not be triggered and the employer can determine how it will handle pay and paid time off during that time period. If the layoff will last more than 35 days, employers in Oregon must treat that as a termination of employment and follow the final paycheck rules and other notifications such as COBRA.

Oregon also has its own WARN notifications which can be found here.


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Unemployment Benefits

The US Department of Labor announced guidance to states regarding unemployment insurance flexibilities related to COVID-19.

Typically, state run UI programs require individuals to be available and able to work. They must also be actively seeking work in order to receive compensation. However, due to the COVID-19 pandemic, the DOL reiterated that states have significant flexibility in implementing these requirements. Therefore, states may determine COVID-19 related layoffs, quarantines, and not being able to work due to COVID-19 exposure risk factors could qualify for unemployment insurance. To file for UI, employees do not have to be off of payroll but rather, they have to show lack of work.

The DOL also pointed out that an individual receiving paid sick leave or paid family leave is still receiving compensation and therefore, those individuals generally would not qualify for UI Insurance. For information regarding Oregon’s Unemployment Insurance, click here.

The FFCRA, also requires employers to notify employees of the availability of unemployment compensation to an employee who separates. The Secretary of Labor is expected to produce a model notice.


Short Time Compensation Programs

In short, a short term compensation program is a program where employers reduce the number of hours worked by employees instead of laying off the employees. The employees whose hours were reduced by at least 10%, and not by more than a certain percentage set by the state are not disqualified from unemployment compensation. The employee must meet the availability for work and work search requirements while collecting the short-time compensation and unemployment compensation.

Employers that voluntarily establish a “short-time compensation program” may become eligible for obtaining this financial assistance from the government. The funding may be available if the employer has a program that qualifies and is located in a State that qualifies. Employers in Oregon may want to consider Oregon’s Work Share program. Work Share provides an alternative for employers and workers who may be facing the prospect of a lay off situation. With Work Share, instead of reducing staff, an employer reduces the hours of work for a group of workers. Partial Unemployment Insurance benefits are then paid to supplement workers' reduced wages.


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Workplace Safety

Health and safety in the workplace is regulated by the federal Occupational Safety and Health Act (“OSH Act”), which imposes legal obligations through industry-specific safety standards and the general duty clause. The general duty clause requires all employers to maintain a workplace free of any recognized hazards that may cause death or serious injury to their employees.

The Occupational Safety and Health Administration (“OSHA”) has provided a guide for employers related to COVID-19 obligations.


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COVID-19 Employer FAQS

FFCRA Definitions

Q: What is Emergency Paid Sick Leave (EPSL)?

A: EPSL provides employees with up to 80 hours of paid sick time when unable to work, including remotely, because:

  1. The employee is subject to a federal, state, or local quarantine or isolation related to COVID-19;
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to one of the two reasons above; (Note: This reason is not just limited to family members. It specifically states to care of an “individual.”)
  5. The employee is caring for their son or daughter if the school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions;
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

This law is in addition to Oregon Sick Leave.

Q: What is Emergency Family Medical Leave (EFML)?

A: EFML provides up to 12 weeks of paid leave when an employee is unable to work or telework due to the need to provide care for their son or daughter whose school or place of care is closed or whose child care provider is unavailable due to a public health emergency, defined as an emergency with respect to COVID-19, declared by a Federal, State, or local authority.

EFML applies to different sets of employers and employees than traditional FMLA.

EFML is paid protected leave (whereas FMLA provides unpaid protected leave).

Q: How are full and part-time employees defined under EPSL and EFML?

A: For EPSL, a full-time employee is an employee who is normally scheduled to work 40 or more hours per week. Under EFML there is no distinction, but rather pay is based off of the number of hours an employee normally works each week.

Q: How is son or daughter defined under the FFCRA?

A: A son or daughter is the employee’s biological, adopted, or foster or stepchild, a legal ward, or a child for whom you are standing in loco parentis.

Additionally, the DOL clarified that under the FFCRA a “son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older), who has a mental or physical disability, and is incapable of self-care because of that disability.

Q: What does “subject to a quarantine or isolation order” mean under the EPSL?

A: The DOL clarified that, “For the purposes of the EPSL, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though their Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.”

Note: This applies to individual employees and itis different than if a business is forced to close due to such an order. Business closures are not a category in which EPSL can be used.

Q: What does “advised by a healthcare provider to self-quarantine,” mean for EPSL purposes?

A: For purposes of EPSL, “advised by a healthcare provider to self-quarantine means:”

A health care provider advises the Employee to self-quarantine based on a belief that:

  1. the Employee has COVID-19;
  2. the Employee may have COVID-19; or
  3. the Employee is particularly vulnerable to COVID-19; and (d) That following the advice of a health care provider to self-quarantine prevents the employee from being able to work, either at the employee’s normal workplace or by telework.

Q: What does it mean to be “seeking a medical diagnosis for COVID-19 related symptoms” for EPSL purposes?

A: Under EPSL, seeking medical diagnosis for COVID-19 related symptoms covers employees that are experiencing any of the following symptoms: fever; dry cough; shortness of breath; or any other COVID-19 symptoms identified by the CDC.

Any Paid Sick Leave taken under EPSL for the “seeking a medical diagnosis” reason is limited to time the employee is unable to work because the employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19 only.

Q: What “individuals” are covered for purposes of providing care for an individual under EPSL?

A: According to the DOL rules, an “individual” under this provision of EPSL means an employee’s immediate family member, a person who regularly resides in the Employee’s home, or a similar person with whom the Employee has a relationship that creates an expectation that the Employee would care for the person if they were quarantined or self-quarantined. For this purpose, “individual” does not include persons with whom the Employee has no personal relationship.

This reason under EPSL is also only available if the employee’s employer actually has work for the employee to perform. If their employer does not have work available, then an employee cannot seek EPLS for the purposes of providing care for an individual.

Q: Who is considered a healthcare provider or emergency responder for purposes of exclusion from EPSL and EFML?

A: According to the DOL, “A health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.”

According to the DOL, “an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.”

FFCRA Eligibility

Q: Am I a covered employer under FFCRA?

A: Private-sector employers with 500 or fewer employees and public agencies of any size are covered under the FFCRA. There are small employer exceptions for both EFML and EPSL. Please refer to the Families First Coronavirus Response Act section.

Q: What employees are eligible for EPSL?

A: Applies to all current employees regardless of length of employment.

Employers may elect to exclude employees who are health care providers or emergency responders.

Note: This is different than normal Oregon Sick Leave eligibility, which is not required to kick in until after 90 days of employment.

Q: What employees are eligible for EFML?

A: Any full-time or part-time employee who has been employed for at least 30 days prior to the request. This includes employees who were laid off or otherwise terminated on or after March 1, 2020, had worked for the employer for at least thirty of the prior 60 calendar days, and were subsequently rehired or otherwise reemployed by the same employer.

Exemption: Employers may elect to exclude employees who are health care providers or emergency responders from taking EFML.

Q: I have less than 50 employees. Am I excluded from complying with the Emergency Paid Sick Leave and Emergency Family Medical Leave Acts?

A: The DOL has clarified that employers with less than 50 employees are exempt from providing EPSL due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and from EFML due to school or place of care closures or child care provider unavailability for COVID-19 related reason 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 use of EPSL or EFML would result in the business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The employee’s leave from work would create 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 enough workers available who are able, willing, and qualified to perform the work done by the employee or employees requesting EPSL or EFML, and this work is needed for the small business to operate at a minimal capacity.

Accordingly, even employers with less than 50 employee must still make EPSL available for the following reasons:

  1. The employee is subject to a federal, state, or local quarantine or isolation related to COVID-19;
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to one of the two reasons above;
  5. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

Q: If my employer closes its workplace during the effective period of the FFCRA but believes it will reopen at some time in the future, are employees eligible to use EPSL or EFML?

A: According to the DOL, no. Employees that work for a business that closes even for a small amount of time are not entitled to take EPSL or EFML. The DOL clarified, “This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive.” This statement makes it clear that employers are not required to pay for EPSL or EFML due to state or local “stay home” orders such as Oregon’s Stay Home, Save Lives Executive Order.

In Oregon, employees may still be able to access Oregon Sick Leave for temporary shutdowns due to COVID-19 but generally not a shutdown due to lack of work. Employees may also be eligible for unemployment in this situation.

Q: Are employees entitled to EPSL, EFML, or Oregon Sick Leave if our business closes due to lack of work?

A: No. Employees are not entitled to use Oregon Sick Leave, EPSL or EFML for loss of employment or a reduction in hours in this situation.

Q: If I reduce an employee’s hours, can they take EPSL or EFML for the hours that they were supposed to work?

A: No. You do not have to pay under EPSL or EFML for hours they’re no longer scheduled to work because the reason for the reduced hours is not a covered reason under EPSL or EFML.

Q: Can an employee use sick leave if they’re just fearful of coming to work and getting sick?

A: Currently, Oregon is recognizing this as a covered reason under Oregon Sick Leave.

FFCRA Application

Q: Do you have any time off examples showing how EPSL, EMFL and other leaves are applied?

A: Facts: Employee’s child’s school is closed for six weeks and the employee has no available daycare and cannot work from home. Employee only has 40 hours of sick leave available (assume employee and employer are covered under OFLA and FMLA).

Before April 1, 2020:

Employee can use up to 40 hours accrued and unused Oregon Sick Leave. This is paid. This time would run concurrently with OFLA. This time would not be covered under FMLA.

Once the employee has exhausted OSL, the employer can require the employee to use any of their remaining paid time off benefits during the leave. Once that exhausts, the time remaining time may be unpaid.

On April 1, 2020 through December 31, 2020

Employee can use up to 80 hours of EPSL. Once EPSL exhausts, the employer must pay the employee at 2/3 their regular rate subject to caps. Can allow employee to use their 40 hours of sick leave as OSL to supplement the difference. Once that exhausts, the employer can require the employee to use any of their remaining paid time off benefits during the leave.

Facts: Employee has been exposed to a COVID-19 positive individual and is told to quarantine for 14 days (assume employee and employer are covered under OFLA and FMLA). Employee has 40 hours of PTO available.

Before April 1, 2020

Employee can use their PTO for the first 40 hours. This time would count against their available OSL time. Once exhausted, additional time off may be unpaid.

This time would not qualify under OFLA or FMLA.

As of April 1, 2020 through December 31, 2020

Employee can use 80 hours of EPSL at 100% of their regular rate. If they need more than 80 hours for the quarantine, then the employee would be allowed to use up to 40 hours of their PTO under Oregon Sick Leave.

This time does not qualify under EFML, OFLA or FMLA.

Q: Can EPSL and EFML be taken intermittently?

A: This depends on if you are working remote or at your workplace. According to the DOL, employees that are not able to work remotely may not take intermittent leave or have partial day absences because:

  • You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

According the to the DOL, unless an employee is teleworking, once they begin taking paid sick leave for one or more of these qualifying reasons, they must continue to take paid sick leave each day until they either (1) use the full amount of paid sick leave or (2) they no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

Employees taking paid sick to care for their child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons can take leave intermittently only if the employee and employer agree. Of course, employers should try to be as flexible as possible with employees taking leave for this reason.

Q: Can an employer require an employee to take EFML concurrently with other leaves available such as PTO or vacation?

A: If the employee uses EPSL for the first two weeks (usually 10 days) of EFML, an employer cannot require an employee use paid leave, including to supplement wages. The employer and employee can agree to supplement. If the employee does not use EPSL during the first two weeks (10 days) then the employer can require use of company provided paid time off benefits during the first two weeks.

After the first two workweeks (usually 10 workdays) of EFML, you may require employees to concurrently use EFML and company provided leaves such as PTO, if that type of leave would be available to employees for the reasons leave is being taken under EFML.

In that situation, employees must be paid the full amount to which they’re entitled to under your existing paid leave policy for the period of leave taken. Once that exhausts you must pay your employee at least 2/3 of his or her pay for any remaining EMFL time they have, up to $200 per workday and $10,000 in the aggregate. Additionally, provided both an employer and employee agree, and subject to federal or state law, paid leave provided by an employer may supplement 2/3 pay under the EFML so that the employee receives their full compensation.

Q: Are the EFML and EPSL requirements retroactive?

A: No. They’re not retroactive.

Q: What records should employers keep for an employee’s use of EPSL and EFML?

A: Employers should maintain the following documentation:

  • Documentation showing how you determined the amount of qualified EPSL and EFMLA wages paid to employees that are eligible for the credit (records of work, including telework, and use of leave)
  • Documentation showing how you determined the amount of qualified health plan expenses attributed to wages (IRS has a form for this calculation)
  • Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the employer submitted to the IRS. New form now available from IRS.
  • Copies of completed and submitted Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS.

Employers can start taking credits April 1, 2020 – December 31, 2020 Records must be maintained for four years after taxes are due or paid, whichever is later.

Q: What reinstatement rights do employees have after taking EPSL and/or EFML?

A: In most situations, an employee is entitled to the same or an equivalent position The laws prohibit employers from firing, disciplining, or otherwise discriminating against an employee for taking or requesting leave. Keep in mind, employees on leave do not have extra protection from actions such as a layoff or reduction force that the employee would have been impacted by whether or not they took leave.

There is an exemption for employers with less than 25 employees when an employee takes leave due to a school closure or lack of care and all four of the following hardship conditions exist:

  • The position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of your leave;
  • The employer has made reasonable efforts to restore the worker to the same or an equivalent position;
  • The employer makes reasonable efforts to contact the worker f an equivalent position becomes available; and
  • The continues to make reasonable efforts to contact the worker for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after your leave began, whichever is earlier.

Q: How do you count the “first 10 days” under EFML?

A: First 10 days under EFML is now defined as two weeks. The DOL rules clarify that rather than referring to the first 10 days under EFML, which is the unpaid portion of EFML, it is actually the first two weeks that EMFL is taken (which usually equates to 10 days for most employees). It further clarifies that employees can choose to either use their EPSL for the first two weeks of EFML, or any company provided paid time off benefits.

Q: Is there any situation in which an employee could take more than 12 weeks of EFML?

A: Yes, in a couple of situations. According to the DOL:

“You are entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave you have taken under the FMLA. Paid sick leave is not a form of FMLA leave and therefore does not count toward the 12 workweeks in the 12-month period cap. But please note that if you take paid sick leave concurrently with the first two weeks of expanded family and medical leave, which may otherwise be unpaid, then those two weeks do count towards the 12 workweeks in the 12-month period.”

For example, if an employee used 80 hours of EPSL for any other reason than to provide care for their child due to the closure of their school or place of care, and then subsequently needed leave to provide care for their child due to the closure of their school or place of care, they would have 12 weeks available under EFML.

Another possible scenario would be if an employee elected to use to use their company provided paid time off benefits such as sick or PTO for the first 10 days of EFML. Here is how this would play out. Employee uses PTO for first 10 days of EFML (child’s school or place of care is closed). The employee still has 10 weeks of paid leave available under EFML, totaling 12 weeks of paid leave using their PTO for the first 10 days and pay under EFML for the remaining 10 weeks. If the employee has not used EPSL for any other reason, they would still have an additional 2 weeks available under EPSL. The grand total is now 14 weeks.

Q: What if an employee has already used some of their leave under traditional FMLA?

A: Employees that have already taken leave under FMLA for traditional reasons are still entitled to EPSL. How much leave time an employee would have available would depend on how much time they’ve already used in a 12-month period. For example, if the employee had already taken six weeks of FMLA for their own serious health condition prior to April 1, then would only have six-weeks remaining for any other FMLA qualifying reason, including reasons under EFML.

Q: Do I have to post a notice to employees about the FFCRA?

A: Yes. All covered employers must post a notice of the FFCRA requirements in a conspicuous place on its premises. This can be done by emailing or direct mailing the notice to employees, or posting the notice on an employee information internal or external website. Even small employers with less than 50 employees are required to comply with the notice requirements. Employers with more than 500 employees do not need to post this as the FFCRA does not apply.

Q: May employers discipline employees who are in violation of the company’s attendance policy due to COVID-19 related absences?

A: Employers should not discipline employees who are in violation of attendance policies because of COVID-19, as the health and safety of all employees is important in the face of a pandemic. Some of the absences may also be specifically protected under Oregon Sick Leave, the Families First Coronavirus Response Act and/or OFLA and FMLA which would prohibit using those absences against them. Further, if employers relax their attendance policy in the face of COVID-19, employers will not create a precedent for non-coronavirus related absences as long as it is clear the relaxed policy is specific to COVID-19 related illnesses only.

Q: Can I require a doctor’s note if an employee has been out ill?

A: This is not recommended right now. Hospitals and doctor’s offices are overwhelmed and industry sources have stated they cannot provide this documentation currently. This is also the current CDC guidance.

Q: I am an employer covered by predictive scheduling. How does COVID-19 interact with this law?

A: As a reminder, the Oregon Employee Work Schedules Law, which took effect in 2018, applies to Oregon employers who are primarily engaged in providing retail, hospitality or food services and have 500 or more employees worldwide. Employers covered under predictive scheduling are required to provide employees with written work schedules at least seven calendar days before the first day of work that runs through the last day of the posted work schedule in effect at the time of delivery.

If employers fail to provide advance notice of scheduled changes, employers are required to provide compensation to the employees who were affected by the schedule change. However, an employer does not have to pay the penalty if an employee’s work shift or on-call shift cannot begin or continue due to the recommendation of a public official. With this, there is a strong argument that the COVID-19 triggers this exception to the penalty component of predictive scheduling.

Q: If an employee is home because their child’s school is closed (which is covered under both EPSL and EFML), how do I track and pay for this time since it is covered under both?

A: The employee be eligible for both types of leave, but they will not receive more than 12-weeks of leave. The EPSL provides for an initial two weeks of paid leave. The first two weeks also covers the first ten workdays of EFML, which would otherwise be unpaid unless the employee chose to use their existing paid time off per your company provided time off benefits. After the first ten workdays, the employee will receive 2/3 of their regular rate for the hours they would have been scheduled to work in the subsequent ten weeks under the EFML.

Q: What documents does an employee need to give their employer to take EPSL or EFML?

A: Per the IRS, an employee must make a written request that includes:

  • Their name
  • The dates(s) leave is being requested
  • A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason and
  • A statement that the employee is unable to work, including telework, for such reason

If the reason for leave is due to a quarantine or self-quarantine, the employee statement must include:

  • The name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and,
  • If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

If the reason for leave is due to a school closure or unavailability of childcare, the employee statement must include:

  • The name and age of the child(ren)
  • The name of the school that has closed or place of care that is unavailable, and
  • Statement that no other person will be providing care for the child during the period they’re taking family leave
  • If the child is older than 14, a statement of the special circumstances that exist resulting in the inability to work or telework during “daylight hours.”

FFCRA Pay

Q: How much do I have to pay employees taking EPSL?

A: Under EPSL employers must pay employees at their regular rate of pay, which is capped at $511 per day and $5,110 in aggregate for the following reasons:

  • Employee is subject to a federal, state, or local quarantine or isolation related to COVID-19;
  • Employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  • Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

For the following reasons, employers must pay two-thirds of employee’s regular rate of pay, which is capped at $200 per day and $2,000 in the aggregate:

  • Employee is caring for an individual who is subject to one of the two reasons above; (Note: This reason is not just limited to family members. It specifically states to care for an “individual.”)
  • Employee is caring for their son or daughter if the school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions;
  • Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

Q: How much do I have to pay employees taking EFML?

A: Under EFML, the first 2 weeks (usually 10 days) are unpaid. Employees can use up to 80 hours of Emergency Paid Sick Leave (EPSL) during the first 10 days if they have that time available.

After the first two weeks (usually 10 days) employers must provide paid leave at no less than two-thirds of an employee’s regular rate of pay. Capped at $200 per day and $10,000 in aggregate. The employer and employee can agree to allow employees to use their available company-provided paid time off benefits to supplement the difference. The company can also require concurrent use of their PTO after the first two weeks. Once that exhausts then the employer must pay at the above stated rate.

Q: How do I know how much to pay under EPSL and EFML if my employee’s schedule varies week to week?

A: If an employee’s schedule varies so much week to week that it’s too difficult to determine the actual number of hours the employee would have worked, employers can use the average number of hours the employee worked per day over a six-month period of time, ending on the date the employee takes leave. This calculation should include any leave time already taken.

Q: Can an employee take 80 hours of EPSL for their own self-quarantine and then another amount of EPSL for another covered reason?

A: No. The employee can only take up to 80 hours for a full-time employee. A part-time employee can take, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave. The cap is 80 hours for any combination of EPSL use.

Q: If the employee is only receiving 2/3 of their regular rate under EPSL or EFML, can I require them to use their accrued and unused paid time off to make them “whole?”

A: No, you cannot require it. However, you can allow it if the employee agrees. Employers can also refuse to let employees use their accrued and unused paid time off.

Q: How do you determine an employee’s regular rate of pay under the FFCRA?

A: According to the DOL, for purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of the employee’s regular rate over a period of up to six months prior to the date on which they take leave. If the employee has not worked for you for six months, the regular rate used to calculate their paid leave is the average of their regular rate of pay for each week they’ve worked for you.

Keep in mind the regular rate must also include overtime. If the employee is paid with commissions, tips, or piece rates, these wages will also need to be incorporated into the above calculation.

You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

Q: Do I have to pay for other qualifying reasons for FMLA now?

A: No. This only applies to 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. Again, reasons under EPSL are separate from EFML. EPSL does provide for additional reasons for leave that do not qualify under FMLA.

However, if an employee’s illness due to COVID-19 qualifies as a serious health condition or requires them to provide care for a family member with a serious health condition, then that would apply towards traditional FMLA, assuming the employee had met the eligibility requirements.

Q: Do I include overtime in determining how much to pay employees under the EFML and EPSL?

A: Yes. According to the DOL, EFML requires employers to pay employees for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.

The EPSL requires that EPSL be paid only up to 80 hours based on what the employee would have worked over a two-week period. For example, an employee who is scheduled to work 60 hours a week may take 60 hours of EPSL in the first week and 20 hours of EPSL in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

Q: Can I require an employee to supplement their pay from EPSL or EFML with company provided paid time off benefits such as sick or PTO?

A: No. The employee may decide whether to use existing company provided paid time off benefits to supplement the amount of pay their receiving from EPSL or EFML if the employer allows employees to supplement their pay. According to the DOL, employers are also not required to allow an employee to use existing paid leave to supplement the amount the employee receives from EPSL or EFML. If allowed by the employer, the employee would also have to agree to use existing paid leave to supplement their pay.

Q: What relief do we have if we cannot afford to pay leave required under the Emergency Family and Medical Leave and/or Emergency Paid Sick Leave?

A: Covered employers will be eligible for a tax credit for leave provided under the FFCRA. For EFML, the amount of qualified family leave wages taken into account for each employee is capped at $200 per day and $10,000 for all calendar quarters. If the credit exceeds the employer’s total liability under section 3111(a) for all employees for any calendar quarter, the excess credit will be refunded to the employer.

For EPSL, a refundable tax credit for employers equal to 100 percent of qualified paid sick leave wages required to be paid by the Emergency Paid Sick Leave Act that are paid by an employer for each calendar quarter. The tax credit is allowed against the tax imposed by section 3111(a) of the Internal Revenue Code (the employer portion of Social Security taxes).

The FFCRA credit also includes the employer’s cost of providing health care coverage to employees during a leave under EFML and EPSL. This applies to the amount the employer paid toward maintaining health plan coverage of an employee on such a paid leave which was excluded from the employee’s gross income for federal income tax purposes. So the cost of the group health plan coverage for an employee on such a leave is added to the wages paid for the qualifying paid leave.

Q: Can I require my employee to use their sick time for a COVID-19 related reason before using the Emergency Paid Sick Leave?

A: Generally No. Starting April 1st, employees are entitled to use 80 hours of EPSL before being required to use company provided leaves if the reason for leave is covered under EPSL. If the reason is not covered under EPSL, then you can apply your normal employer policies, including use of Oregon Sick Leave.

FLSA

Q: Can I reduce wages for exempt employees without jeopardizing their FLSA status?

A: Yes, as long as the reduction is not intended to shift week to week, or to avoid FLSA compliance. This means the reduction should be for an extended period of time based on the long-term operational needs to the business. For example, it would not be permissible to reduce an exempt employee’s salary for one week and then return it to the original rate the following week. Also keep in mind, that any reductions must still meet the minimum salary threshold under the FLSA of $684 per week. It’s also important that the reduction applies to specific groups of employees such as all Directors, rather than individuals. It should not be attached to an expectation of reduction in hours or other changes in job duties. Employers should also consider the impact such changes would have on Oregon’s Equal Pay Act requirements. Accordingly, it will be critical for employers to do a thorough analysis before making any changes.

Q: Can I switch to paying my exempt employees hourly during this pandemic?

A: Employers may consider reclassifying exempt employees as non-exempt if such a change would support the long-term business needs of the organization, meaning this should not be changing week to week. For example, if the needs of the business show that there is only enough work to support exempt employees working part-time for the foreseeable future, switching that group of employees to an hourly rate may be justifiable. Keep in mind, this will impact many other areas such as the employees needing to track all hours worked, compliance with rest and meal periods and potentially overtime. Employers should also consider the impact such changes would have on Oregon’s Equal Pay Act requirements. Accordingly, it will be critical for employers to do a thorough analysis before making any changes.

Q: Does paying an exempt employee at only 2/3 their regular rate for EPSL and EFML violate the FLSA salary rules?

A: No. While normally employers cannot make these types of salary reductions, the DOL rules state:

“The Department intends that providing maximum flexibility to employers and employees during the public health emergency should not impact the underlying relationships between an employer and an employee. More specifically, nothing in this Act should be construed as impacting an employee's exempt status under the FLSA. For example, an employee's use of intermittent leave combined with either paid sick leave or expanded family and medical leave should not be construed as undermining the employee's salary basis.”

Layoffs & Unemployment Benefits

Q: Has Oregon waived the one-week waiting period for Unemployment Insurance Benefits?

A: No. The one week waiting period has not been waived. Oregon stated if it waived the one-week waiting period, it could actually result in further delays.

Q: The CARES Act passed the additional $600 weekly unemployment insurance benefit. What is this?

A: This COVID-19-related Federal Unemployment Compensation benefit is available for any worker eligible for state or federal UI benefits. The $600 per week is in addition to Oregon’s Unemployment Insurance benefits. The $600 will be paid at the same time as a person’s Unemployment Insurance benefit, however, it may not come in the same check as the individual’s UI benefits from the state.

Q: How soon will individuals get the Federal $600 weekly COVID-19- related Compensation Benefit?

A: This Once an individual applies for Oregon’s Unemployment Insurance benefits, they will automatically be eligible to receive the $600 weekly Federal UI benefits.

Q: Are employees eligible for unemployment benefits if the business temporarily shuts down due to COVID-19?

A: UI benefits may be available to those who are on a temporary layoff. These benefits occur for claimants whose employer stops operation for a short period of time, such as cleaning following a coronavirus exposure or by government requirement.

Workers can get UI benefits, and do not need to seek work with other employers.

They must be able to work, stay in contact with their employer, and be available to work when called back.

Q: Can laid off or terminated employees get unemployment benefits if they are still receiving employer-paid leave, vacation, sick time, or Paid Time Off (PTO)s?

A: No. If a laid off or terminated employee receives the above funds, unemployment benefits are not available.

Q: Are employees who are required to stay home due to COVID-19 related illness or exposure eligible for unemployment benefits?

A: Yes. A person will be considered available to work and thus, eligible for unemployment benefits if they are:

  1. Quarantined by their health care provider, or by advice issued by public health officials to self-quarantine due to possible risk of exposure to, or spread of, the novel coronavirus, but they are not sick;
  2. Home sick because of the novel coronavirus or a condition with similar flu like symptoms and they have not turned down an offer of work since they began being at home due to the sickness; or
  3. Hospitalized, or in other institutionalized care, due to COVID-19.

Q: What happens if a former or terminated employee is sick and/or quarantined with COVID-19? Can they still receive unemployment benefits?

A: If the individual is sick with COVID-19, they likely not able and available to work. With that, they could not receive unemployment insurance benefits. Being able to work means that individuals are physically and mentally able to do the work they are looking for or usually do, unless:

  1. They were sick or injured for less than half of the week; or
  2. They have a long-term condition preventing them from working, but they can still do some work. If they had an opportunity to work, but did not because they were sick, they likely cannot receive unemployment insurance benefits for that week, but may be eligible for benefits for other weeks.

Q: Will a laid off or terminated employee be eligible for unemployment benefits if the employer remains open but they don’t want to come to work because of the risk of exposure to the coronavirus?

A: Potentially. They can file a claim and the Employment Department will gather information from you and your employer to see if benefits would apply.

Q: What is the difference between a furlough and a layoff?

A: A furlough is most common in the public sector, but in the private sector is often used interchangeably with what is considered a temporary layoff. A furlough is either a complete or partial reduction in hours in which the employee maintains their employment and benefits. For example, a company a furlough employees for two days a month. However, a furlough could be longer as well. A layoff is typically associated with a complete loss of work for an extended period of time. If a layoff will be less than 35 days, it may still be considered a furlough or a temporary layoff because the individual generally has an expectation of recall within a short period of time and maintains their employment and benefits. If there is no expectation of recall, or if the layoff/furlough will last more than 35 days, it must be treated as a termination of employment.

Q: Can employees use Oregon Sick Leave if our business shuts down?

A: If the workplace is temporarily closed due to a public health emergency, eligible employees (generally after 90 days of employment) would be able to use accrued and unused OSL to cover the closure. If the employee is laid off, otherwise terminated or if the business is permanently closed, employees would not be entitled to sick leave. Employees reinstated within 180 days the employer must receive their balance of accrued but unused paid sick time and their eligibility restored at the same level prior to the layoff or termination.

Employees are not entitled to use EPSL or EFML for business closures, even temporary.

Health & Safety

Q: How should we address sick employees?

A: When sick employees come to work, they run the risk of infecting the rest of the workforce.

  • If you have an employee who has contracted COVID-19, that employee should be sent home immediately. Advise the employee to seek medical care right away and to avoid contact with others.
  • It is also advised that the employer seek information about who the employee may have come into close contact with through their work. Employers should share non-identifying information with other employees who work at the same location, as they are at increased health risk. Any employee that has come into close contact with the infected employee should also be sent home for 14 days.
  • Follow CDC guidelines for returning the employee to work. While some employers may be tempted to ask for medical clearance from a health care provider, doing so likely is no longer feasible, given current conditions. The employer should utilize established leave of absence policies and/or consider allowing the employee to telecommute during this time period.
  • Contact the CDC and local health department immediately; and
  • If you have an employee that has potentially been exposed to COVID-19 but is not exhibiting symptoms, take the same precautions as above.
  • If you have an employee that is sick, but not exhibiting any COVID-19 related symptoms, encourage them to stay home.

Q: How do we address employee concerns about co-workers who appear sick and/or who may be from areas with known coronavirus cases?

A: Employers should be prepared to respond to employees who express reservations about working with employees or others who have returned from international travel or who are otherwise suspected of being infected with coronavirus. While some employee worries will be reasonably based on and consistent with guidance from medical authorities, other concerns may be driven by unfounded fear and/or speculation. Employers must be careful not to feed into unsubstantiated employee concerns and to avoid engaging in discrimination — including discrimination against individuals who are disabled or perceived as disabled because they are exhibiting symptoms associated with the virus, or individuals belonging to protected classes associated with a virus that appears to have originated in Asia.

It is extremely important for employers to regularly communicate with employees regarding issues surrounding workplace COVID-19 matters. Additionally, it is also extremely important that supervisors are properly trained on how to respond to employee questions.

Q: May an employer restrict business travel?

A: Yes. Employers may restrict business travel and should prohibit all unnecessary travel per Department of State’s advisory. Employers should develop and communicate plans in regards to both global and domestic travel. While employers should not limit employees’ rights to personal travel, employers can implement self-quarantine upon an employee’s return but this policy must be applied consistently.

Q: Can I require an employee that has recently traveled (personal or for business) to a high risk area to stay at home for a period of time after they return?

A: Because COVID-19 has been declared a pandemic, employers do not have to wait until an employee develops symptoms to ask about potential exposure. If the CDC or local health authorities such as the Oregon Health Authority recommends that individuals traveling to an affected area stay home for a period of time, then employers may do the same. It is recommended you obtain information from the CDC and Oregon Health Authority if you have any employees in that situation.

Q: Can I take the temperature of employee’s prior to them coming in to the workplace?

A: Generally, measuring an employee’s body temperature is an unlawful medical examination. However, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued precautions as of March 2020, employers may measure employees' body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements. However, employers should be aware that some people that may have COVID-19 may not have a fever.

Q: May employers encourage or require employees to work remotely as a disease prevention strategy?

A: Yes. Employers in Oregon are required to take maximum effort to make remote work available to as many employees as it can under the Stay Home, Save Lives Executive Order.

FFCRA Tax Credits

Q: What are the tax credits available to employers under the FFCRA?

A: The FFCRA allows employers to receive a tax credit for qualified wages for leave taken under the FFCRA. The tax credit is against the employer portion of social security tax liability.

For EPSL, a refundable tax credit for employers equal to 100 percent of qualified paid sick leave wages required to be paid by the Emergency Paid Sick Leave Act that are paid by an employer for each calendar quarter. For EFML, the amount of qualified family leave wages taken into account for each employee is capped at $200 per day and $10,000 for all calendar quarters.

To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form that will be released soon.

Q: What is the amount of credit available under the FFCRA?

A: The credits covers 100 percent of up to ten days of the qualified sick leave wages and up to ten weeks of the qualified family leave wages (and any qualified health plan expenses allocable to those wages) that an Eligible Employer paid during a calendar quarter, plus the amount of the Eligible Employer’s share of Medicare taxes imposed on those wages.

Example: An Eligible Employer pays $10,000 in qualified sick leave wages and qualified family leave wages in Q2 2020.

  • It does not owe the employer’s share of social security tax on the $10,000, but it will owe $145 for the employer’s share of Medicare tax.
  • Its credits equal $10,145, which include the $10,000 in qualified leave wages plus $145 for the Eligible Employer’s share of Medicare tax (this example does not include any qualified health plan expenses allocable to the qualified leave wages).
  • This amount may be applied against any federal employment taxes that Eligible Employer is liable for on any wages paid in Q2 2020.
  • Any excess over the federal employment tax liabilities is refunded in accord with normal procedures.
  • Eligible Employer must still withhold the employee’s share of social security and Medicare taxes on the qualified leave wages paid.

Q: What are qualified wages under the FFCRA?

A: Qualified sick leave wages are wages that the FFCRA requires an employer to pay to an employee who is unable to work or telework because of either the employee’s personal health status (that is, the employee is under COVID-19 quarantine or self-quarantine or has COVID-19 symptoms and is seeking a medical diagnosis) or the employee’s need to care for others (that is, the employee is caring for someone with COVID-19 or for a child whose school or place of care is closed or child care provider is unavailable).

Qualified family leave wages are wages that the FFCRA requires an employer to pay to an employee who is unable to work or telework because the employee is caring for a child whose school or place of care is closed or child care provider is unavailable due to COVID-19-related reasons.

Qualified health plan expenses are amounts paid or incurred by an employer to provide and maintain a group health plan (as defined in section 5000(b)(1) of the Internal Revenue Code) that are allocable to the employee’s qualified leave wages.

Q: Does the healthcare plan expenses cover both employer and employee portions for purposes of qualified wages under the FFCRA?

A: The amount of qualified health plan expenses taken into account in determining the credits generally includes both the portion of the cost paid by the employer and the portion of the cost paid by the employee with pre-tax salary reduction contributions.

However, the qualified health plan expenses should not include amounts that the employee paid for with after-tax contributions.

Q: When can we start claiming the credit under the FFCRA?

A: Claim the credits on your federal employment tax returns (Form 941) but you can benefit more quickly from the credits by reducing your federal employment tax deposits.

If there are insufficient federal employment taxes to cover the amount of the credits, an employer may request an advance payment of the credits from the IRS by submitting Form 7200 (Advance).

Covers qualified wages starting on April 1, 2020 – December 31, 2020.

Q: How do we claim the tax credits under the FFCRA?

A: Report the total qualified leave wages (and allocable qualified health plan expenses and the employer’s share of Medicare tax on the qualified leave wages) for each quarter on their federal employment tax return, usually Form 941, Employer's Quarterly Federal Tax Return.

In anticipation of receiving the credits, employers can fund qualified leave wages (and allocable qualified health plan expenses and the employer’s share of Medicare tax on the qualified leave wages) by accessing federal employment taxes related to wages paid between April 1, 2020, and December 31, 2020, including withheld taxes, that would otherwise be required to be deposited with the IRS.

This means that in anticipation of claiming the credits on the Form 941, employers can retain the federal employment taxes that they otherwise would have deposited, including federal income tax withheld from employees, the employees’ share of social security and Medicare taxes, and the employer’s share of social security and Medicare taxes with respect to all employees.

The Form 941 will provide instructions about how to reflect the reduced liabilities for the quarter related to the deposit schedule.

Q: What records should employers keep for an employee’s use of EPSL and EFML for tax credit purposes?

A: Documentation showing how you determined the amount of qualified EPSL and EFMLA wages paid to employees that are eligible for the credit (records of work, including telework, and use of leave).

Documentation showing how you determined the amount of qualified health plan expenses attributed to wages (IRS has a form for this calculation).

Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19 that the employer submitted to the IRS.

Copies of completed and submitted Forms 941, Employer’s Quarterly Federal Tax Return that the employer submitted to the IRS.

Maintain records for four years after taxes are due or paid, whichever is later.

Q: Can we claim FFCRA credits and the Employee Retention Tax Credits under the CARES Act?

A: Yes, if an employer also meets the requirements for the employee retention credit, it may receive both credits, but not for the same wage payments.

The CARES Act allows certain employers subject to a full or partial closure order due to COVID-19 or experiencing a significant decline in gross receipts a tax credit for retaining their employees. This employee retention credit is equal to 50% of qualified wages (including allocable qualified health plan expenses) paid to employees after March 12, 2020, and before January 1, 2021, up to $10,000 in qualified wages for each employee for all calendar quarters.

However, the qualified wages for the employee retention credit do not include the amount of qualified leave wages for which the employer received tax credits under the FFCRA.

Q: Can we claim FFCRA credits if we also have a PPP loan?

A: Yes. However, if an employer receives tax credits for qualified leave wages, those wages are not eligible as “payroll costs” for purposes of receiving loan forgiveness.

CARES Act: Paycheck Protection Program Loan

Q: What is the Paycheck Protection Program?

A: The purpose of the Paycheck Protection program is to provide fully federally funded loans to small businesses as an incentive for small businesses to keep their employees on the payroll instead of layoffs, reducing employees’ hours, reduction in workforce, or any similar action. The loans can only be used for the following expenses:

  • Payroll costs
  • Costs related to group health care benefits during periods of paid sick, medical or family leave, and insurance premiums
  • Employee salaries, commissions, or similar compensations
  • Mortgage interest payments
  • Rent
  • Utilities
  • Interest on any other debt obligations that were incurred before the covered period

Payments made under the FFCRA are excluded expenses since those are eligible for tax credits.

Q: Am I eligible for the Paycheck Protection Loan?

A: All employers (including nonprofits, veterans organizations, Tribal business concerns, sole proprietorships, self-employed individuals, and independent contractors) with 500 or fewer employees can apply. Moreover, employers in certain industries can have more than 500 employees if they meet applicable SBA employee-based size standards for those industries.

Q: How do I apply for the Paycheck Protection Program?

A: Employers can apply for the Paycheck Protection Program (PPP) at any financial institution that is approved through the SBA. To find participating institutions, you can us the SBA’s online Lender Match Tool. Employers are eligible to apply for the PPP loan until June 30th, 2020.

Note: On April 24, 2020, additional funding to replenish PPP funds was signed into law.

Q: What is the maximum amount of the PPP loan?

A: The amount any eligible employer can to borrow is up to 2.5 times their average monthly payroll expenses, up to a total of $10 million. This loan amount is intended to cover 8 weeks of payroll expenses and any additional amounts for making payments towards debt obligations.

The 8-week period of time can be applied at any point between February 15, 2002 and June 30, 2020. For employers with seasonal businesses, the loan amount is measured using a 12-week period starting February 15, 2019 or March 1, 2019.

Q: Will the PPP Loan be forgiven?

A: Potentially. If employers use the PPP loan for payroll, and existing interest payments on mortgages, rent payments, leases, and utility service agreements, the amount of principal equal to the sum of those expenses may be forgiven.

Payroll costs include employee salaries (capped at $100,000 annually), hourly wages and cash tips, paid sick or medical leave, and group health insurance premiums. Employers may use the PPP loan for other business-related expenses but those costs will not be forgiven.

Q: How long does it take for the PPP loan to be forgiven?

A: Employers must make a request for loan forgiveness for their lenders at the end of the 8-week period. Borrowers will work with lenders to verify covered expenses and the proper amount of forgiveness.

Q: How much of my PPP loan will be forgiven?

A: It depends.

The amount of forgiveness largely depends on if the funds are used for covered expenses and the employer’s current FTE compared to historical FTE. First, loan forgiveness will only be applied to payments existing interest payments on mortgages, rent payments, leases, and utility service agreements. Next, more than 25% of non-payroll expenses will be forgiven. Other restrictions are based on your historical FTE count.

For example, a covered employer receives a $500,000 loan. It uses $375,000 (75%) for expenses that are listed as forgivable and the other $125,000(25%). This meets the 75/25 rule for 100% loan forgiveness.

However if the FTE during the covered period (the 8 week period starting with the funding date) is less than the historical FTE (the average monthly FTE level for either February 15 through June 30, 2019; or January 1 through February 29, 2020) then that may also reduce forgiveness. If the company’s FTE during the covered period is 45 employees and the historic FTE is 50 employees, then the loan forgiveness will be reduced by 10%, meaning only $450,000 will be eligible for loan forgiveness. If there is no change in the ration between the covered period and the historic FTE, or if by June 30, 2020 you increase your FTE to pre February 15, 2020 levels, then the full $500,000 would still be eligible for forgiveness.

A reduction in employee wages of more than 25% can also result in less than 100% loan forgiveness. The reduction equals the amount of the reduction in total salary or wages of any employee during the covered period, to the extent such reduction exceeds 25% of the total salary or wages paid to the employee during the most recent full quarter prior to the covered period. Taking the same $500,000 loan and company. Historic FTE is 50 employees and all are paid $25,000 in the last quarter before the covered period totaling $1,250,000. During the covered period, all employees’ wages are reduced to $17,500 (a 30% reduction) totaling $875,000 in wages. Loan forgiveness is reduced by $62,500. ($1,250,000 x .75 = $937,500. $937,500 - $875,000 = $62,500.). If, by June 30, 2020, wages are restored to pre-February 15, 2020 levels then the company will be eligible for full loan forgiveness.

Q: What if I have already laid off employees before taking the PPP loan?

A: If an employer has already laid off some employees, they can still be forgiven for the full amount of the payroll cost if those employees are rehired by June 30, 2020.

Q: Am I responsible for interest on the forgiven loan amount?

A: No. If the PPP loan is forgiven in full, employers are not responsible for interest accrued on the loan. However, remainder of the loan that is not forgiven will operate under terms set up by your lender. Any amounts that are not forgiven are subject to 1% interest, which must be paid in full within two years. Payments may also be deferred for six months.

CARES Act: Economic Injury Disaster Loan

Q: What are Economic Injury Disaster Loans (EIDL)?A: EIDLs are lower interest loans of up to $2 million. These loans can be used for used for payroll, rent, mortgage, other operational costs. Unlike the PPP loans, EIDLs are not eligible for loan forgiveness. The principal and interest deferment of EIDLs are at the Administrator’s discretion and such loans are available to pay for expenses that could have been met had the disaster not occurred, including payroll and other operating expenses. The interest rate is 3.75% for for-profit businesses and 2.75% for non-profit businesses, with a maximum term of 30 years. Payment on EIDLs are deferred for one year and while interest accrues during the deferment period, there is no prepayment penalty.

EIDL funds cannot be used for qualified sick and family leave wages if an employer is taking a tax credit for those costs. If you already have an EIDL loan (between January 31, 2020, and April 3, 2020), you can still apply for a PPP loan but must be used for different expenses. Employers can also refinance EIDL loan into a PPP loan but note that if you do get a PPP loan, the EIDL Advance of $10,000 will be subtracted from the PPP forgiveness amount.

Q: Am I eligible for an EIDL loan?

A: Employers with 500 or fewer employees that were in operation as of January 30, 2020, including sole proprietorships, with or without employees, independent contractors, cooperatives/ employee owned businesses, and tribal small businesses are eligible. Moreover, small business concerns and small agricultural cooperatives that meet the applicable size standard for SBA are also eligible. Additionally, most private non-profits of any size are eligible for EIDLs. To be eligible, businesses must have suffered a substantial economic injury.

Q: What can an EIDL loan be used for?

A: The EIDL loan is to help employers meet financial obligations that they could have met had the disaster (COVID-19) not occurred. The EIDL can be used for payroll, rent, mortgage, and up to six months of other operational costs. The loan cannot be used to replace lost sales or revenue.

Note: Cannot use funds for qualified sick and family leave wages if you’re taking a tax credit for those costs.

Q: How do I apply for an EIDL loan?

A: Employers can apply online for EIDL through SBA's Disaster Loan Assistance website.

Note: On April 24, 2020, additional funding to replenish EIDL funds was signed into law.

Q: If I already have an EIDL, can I apply for PPP?

A: If you already have an EIDL loan (between January 31, 2020, and April 3, 2020), you can still apply for a PPP loan but must be used for different expenses. Employers can also refinance EIDL loan into a PPP loan but note that if you do get a PPP loan, the $10,000 grant will be subtracted from the PPP forgiveness amount.

Q: What is the Economic Injury Disaster Loan Grant?

A: The EIDL Grant is part of the EIDL application process. On the application, employers must click that they want to be considered for the $10,000 Advance.

Note: The $10,000 advance is the maximum employers can receive under the grant. Currently, the SBA is providing $1,000 per employee up to $10,000. The grant can be provided in as little as three days of application and it is forgiven if it is spent on paid leave, maintaining payroll, mortgage, or lease payments, even if you do not get the EIDL.

CARES Act: Employee Retention Tax Credit

Q: What is the Employee Retention Tax Credit?

A: The Employee Retention Credit is a refundable tax credit against certain employment taxes equal to 50 percent of the qualified wages an eligible employer pays to employees after March 12, 2020, and before January 1, 2021.

Eligible employers can get immediate access to the credit by reducing employment tax deposits they are otherwise required to make. Also, if the employer's employment tax deposits are not sufficient to cover the credit, the employer may get an advance payment from the IRS.

Q: Who is eligible for the Employee Retention Tax Credit?

A: Employers, including tax-exempt organizations, are eligible for the credit if they operate a trade or business during calendar year 2020 and experience either:

The full or partial suspension of the operation of their trade or business during any calendar quarter because of governmental orders limiting commerce, travel, or group meetings due to COVID-19, or a significant decline in gross receipts.

A significant decline in gross receipts begins on the first day of the first calendar quarter of 2020 for which an employer’s gross receipts are less than 50% of its gross receipts for the same calendar quarter in 2019.

The significant decline in gross receipts ends on the first day of the first calendar quarter following the calendar quarter in which gross receipts are more than of 80% of its gross receipts for the same calendar quarter in 2019.

The credit applies to qualified wages (including certain health plan expenses) paid during this period or any calendar quarter in which operations were suspended.

Q: What does qualified wages for the Employee Retention Tax Credit mean?

A: The definition depends on how many employees each eligible employer has.

If you average more than 100 full-time employees during 2019, qualified wages are generally those wages, including certain health care costs, (up to $10,000 per employee) paid to employees that are not providing services because operations were suspended or due to the decline in gross receipts. You can only count wages up to the amount that the employee would have been paid for working an equivalent duration during the 30 days immediately preceding the period of economic hardship.

If you average 100 or fewer full-time employees during 2019, qualified wages means those wages, including health care costs, (up to $10,000 per employee) paid to any employee during the period operations were suspended or the period of the decline in gross receipts, regardless of whether or not its employees are providing services.

Q: How does FFCRA tax credits and PPP intersect with the Employee Retention Tax Credit?

A: If you receive the PPP loan, you are not eligible for the Employee Retention Tax Credit. Additionally, Wages for this credit do not include wages for which the employer received a tax credit for EPSL and EFML.

Q: How do I claim the Employee Retention Tax Credit?

A: In order to claim the new Employee Retention Credit, eligible employers will need to report their total qualified wages and the related health insurance costs for each quarter on their quarterly employment tax returns (Form 941 for most employers), beginning with the second quarter. The credit is taken against an employer's share of social security tax but the excess is refundable.

In anticipating the tax credit claim, employers can retain a corresponding amount of the employment taxes that otherwise would have been deposited, including federal income tax withholding, the employees' share of Social Security and Medicare taxes, and the employer's share of Social Security and Medicare taxes for all employees, up to the amount of the credit, without penalty, which takes into account any reduction for deposits from FFCRA.

Eligible employers can also request an advance of the Employee Retention Credit by submitting Form 7200.

CARES Act: Payroll Deferral

Q: Who is eligible for Payroll Tax Deferrals?

A: Nearly all employers, regardless of size, are eligible for the Payroll Tax Deferral.

Q: What does the Payroll Tax Deferral provide to employers?

A: The Payroll Tax Payroll Tax Deferral allows employers to postpone paying some payroll taxes due in 2020. Specifically, employers can defer deposits of the employer portion of Social Security taxes on wages from 3/27/2020 through 12/31/2020. Employers are required to pay 50 percent of those taxes by December 31, 2021 and the remaining fifty percent is due no later than December 31, 2022.

Q: How does the Payroll Tax Deferral work with PPP?

A: If your PPP loan is forgiven, you are not eligible for Payroll Tax Deferral.

Q: How do I account for this deferral?

A: For employers who file Form 941, Employer's Quarterly Federal Tax Return, the IRS stated that it will release a revised Form 941 to be used for Q2 2020. This revised form will include information on how you should reflect deferred deposits and payments that would have been due for Q1 2020.

CARES Act: SBA Express Bridge Loan

Q: What is the SBA Express Bridge Loan?

A: The SBA Express Bridge Loan is available through March 31, 2021 and it allows small businesses who currently have a business relationship with an SBA Express Lender to access up to $25,000 quickly.

Q: What can the SBA Express Bridge Loan be used for?

A: The SBA Express Bridge Loan is meant to cover the loss of revenue employers are experiencing and can be a term loans or used to bridge the gap while applying for EIDL or PPP.

Q: What are the terms of the SBA Express Bridge Loan?

A: The Small Business Express Loan be paid with EIDL funds or refinanced into PPP Loan.

CARES Act: SBA Debt Relief

Q: What is the SBA Debt Relief?

A: The SBA will automatically pay the principal, interest, and fees of current 7(a), 504, and microloans for a period of six months. Moreover, the SBA will also automatically pay the principal, interest, and fees of new 7(a), 504, and microloans issued prior to September 27, 2020.

Q: What if I have an existing disaster loan?

A: For employers with existing disaster loans in “regular servicing” status on March 1, 2020, the SBA is providing automatic deferments through December 31, 2020.


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