COVID-19 Frequently Asked Questions

Click on each question to view the drop-down answers. Scroll down for questions and answers on FMLA, Hiring/Firing/Furlough, Sick Leave/Paid Time Off, and HR and more.

Families First Coronavirus Response Act (FFCRA)

We have 600 employees across 5 companies. Does this mean we are exempt from the emergency sick pay?

Generally, each entity will be considered as separate employers. However, if the entities are considered a single employer under the Family & Medical Leave Act (FMLA), then they will be considered as a single employer under FFCRA.

Should we continue to process garnishments, levies, and student loan garnishments during this time?

The Education Department announced they will not be collecting student loan garnishments as of March 13. Child support orders are still in effect. Tax levies will depend upon each state.

Does FFCRA apply to companies with more than 500 employees?

FFCRA does not apply to employers with more than 500 employees.

Will the Federal requirement (500 employees) be based on individual FEIN or based on total headcount under the parent company?

Generally, each entity will be considered as separate employers. However, if the entities are considered a single employer under FMLA, then they will be considered as a single employer under FFCRA.

Is there any provision for either of the emergency pay programs to pay retroactively, for absences occurring now, before April 2nd?

FFCRA does not apply retroactively; its provisions are effective as of April 1, 2020.

For the Families First Coronavirus Act, we are a company with four different UBIs. Three of the UBIs have over 500 employees, one is under 500. Can we be counted as one employer or do we need to treat employees under the one UBI without 500 differently?

Generally, each entity will be considered as separate employers. However, if the entities are considered a single employer under FMLA, then they will be considered as a single employer under FFCRA.

Was April 2 the deadline to implement this to our employees or were we supposed to implement it on April 2?

The law is effective as of April 1, so employers are able to take leave under FFCRA as of April 1st.

Is 500+ based on our employee count on April 2nd? It’s possible that my company will go below 500 employees in the future with oil prices.

The 500-employee count is based on the time an employee requests leave. This requires employers to maintain updated headcounts to know if they meet the threshold at the time of the leave request.

We are a seasonal employer, and our number of employees fluctuates. Do we need to look at the number of weeks where we had 501 or more employees on our payroll roster in the past year, and if it's more than 20, does the FFCRA apply to us?

The 500-employee count is based on the time an employee requests leave. This requires employers to maintain updated headcounts to know if they meet the threshold at the time of the leave request.

For purposes of determining the number of employees in a company, when an organization is comprised of five separate corporations (each with its own FEIN; one parent company and four subsidiaries), does each FEIN stand alone?

Generally, each entity will be considered as separate employers. However, if the entities are considered a single employer under FMLA, then they will be considered as a single employer under FFCRA.

My company has over 500 employees, but we acquired a company that has less than 500 employees. Would the acquired company have to meet these requirements or because they are a part of a larger control group would they be exempt? They have their own federal tax ID number and our ownership is 85% of their company?

Generally, each entity will be considered as separate employers. However, if the entities are considered a single employer under FMLA, then they will be considered as a single employer under FFCRA.

Are these leaves 10 days and 12 weeks stacked or do they run concurrently?

The 10 days/12 weeks run concurrently

We are a hospice and have clinical and nonclinical staff. Our clinical staff will obviously continue to work, but many of our nonclinical staff may be unable to continue working under the current circumstances.

Health care providers are defined as 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.

Health care providers are defined as 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.

Under FFCRA, employees are entitled to take paid sick leave regardless of the leave taken under FMLA. Employee eligibility for expanded FMLA depends upon how much leave remains available to the employee during the 12-month period.

How long does someone need to be employed to be eligible?

The employee needs to be employed for 30 calendar days to be eligible.

Regarding 2/3rds pay--it is up to 2/3rds pay or no less than 2/3rds pay?

The pay must be paid at 2/3rds of the employee's regular rate of pay for the number of hours the employee would normally be scheduled to work

Is the 500 number for full-time employees or both full- and part-time?

The 500 count is for all employees but excludes independent contractors.

Please advise if it is 500 employees' company wide, at all locations, even in various states?

The 500-employee count will include all employees in a company regardless of location

If we are owned by a Belgian company and have a US division with less than 500 employees, do we include the employees outside of the US in that number?

Only include the employees within the United States to determine if you meet the 500-employee threshold.

For the employee who fears to come to work due to fear of being infected, do they fall under the protection of the FFCRA?

The leave protections cover employees who fall into two categories: (1) are unable to work because the employee is quarantined, and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or (2) because of a bona fide need to care for an individual subject to quarantine, or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Are there any notice requirements to employees about the new Act?

Yes, covered employers are required to post notices for employees. The Department of Labor released a model notice, which can be found here:
https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

If someone tests positive for COVID-19, is it okay to tell other employees and company leadership without using the positive test person's name?

Yes, employers may inform employees of their potential exposure without identifying the sickened employee.

With the healthcare system under pressure, for those that take advantage of the ER FMLA expansion, should documentation (FMLA/doctors note/other) for medical leave need be related to COVID-19? If not, can an employer use a letter signed by the employee as recognition of leave in lieu of requiring medical documentation?

Currently, the CDC is not recommending employers to require medical documentation as health care facilities may not have the time to respond to such documentation requests.

Could you please clarify the definition of part-time employees for the new emergency paid leave? Does this mean "as needed employees" who do not have regularly scheduled hours, like a variable float pool?

Part-time employees are defined as employees who are normally scheduled to work fewer than 40 hours each workweek or—if the employee lacks a normal weekly schedule—who are scheduled to work, on average, fewer than 40 hours each workweek.

Under the new FFCRA, is the paid family leave intermittent or continuous or both?

Intermittent leave is available if the employee and employer agree to the intermittent leave. If the employee is required to report to the employer's workplace, intermittent leave is available only if there is minimal risk to other employees in the workplace.

Intermittent leave is available if the employee and employer agree to the intermittent leave. If the employee is required to report to the employer's workplace, intermittent leave is available only if there is minimal risk to other employees in the workplace.

The Department of Labor defines "son or daughter" as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age; or 18 years of age or older who is incapable of self-care because of a mental or physical disability.

Will employers be reimbursed for the emergency sick leave act?

Eligible employers are entitled to receive a credit in the full amount of the qualified sick leave wages and qualified family leave wages, plus allocable qualified health plan expenses and the employer’s share of Medicare tax, paid for leave during the period beginning April 1, 2020, and ending Dec. 31, 2020.

Who is considered a first responder? Fire and police for sure, but what about dispatch and administrative staff? Are they considered first responders?

Emergency responders are defined as "anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19."

Who will pay the employee the two weeks' pay? The employer or the state?

Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits.

If an associate is reluctant to come to work for fear of COVID-19 and does not want to use paid leave, are employers required to allow them to stay home unpaid. How long will we allow them to stay home before it creates a hardship for the company?

Leave taken by an employee for the purpose of avoiding exposure would not be protected under the FMLA.

Are government employers required to comply with the Families First Act Emergency Sick Leave requirements?

Generally, yes, government employees are eligible to take leave under FFCRA. Government employees are eligible for leave under FFCRA unless the Office of Management and Budget issues guidance excluding certain federal employees from taking leave.

If our business closes our doors tomorrow and employees begin applying for unemployment due to lack of work or layoffs, would we no longer need to comply with the new Emergency Paid Sick Leave Act and the Emergency Expansion Act that takes effect April 2?

FFCRA does not cover employees who have been furloughed or terminated.

What is the consequence of implementing parts of the new sick pay and leave program before April 2nd?

Employers could voluntarily provide paid leave prior to April 1, but that does not impact their obligation to provide paid leave under FFCRA as of April 1, 2020.

In regard to I-9 reverification, if an employee is not able to complete biometric screening due to shelter in place orders in California, and therefore not able to obtain renewed documents, are we obligated to terminate this employee?

DHS released guidance on how to verify and re-verify employees who are telecommuting. As of March 20, employers with telecommuting employees may review the employment eligibility documents remotely. Once the employee(s) report to the employer's workplace, then the employer is required to physically examine the documents in person. The guidance can be found here:
https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance

Family and Medical Leave Act

Can the time under the FMLA expansion Act (12 weeks) be taken intermittently?

What is the eligibility requirement for the emergency FMLA act?

The employee needs to be employed for 30 calendar days to be eligible.

Who (what type of employers) does the Emergency FMLA apply to? Who does is not apply to?

The act applies to certain public employers and private employers with less than 500 employees.

Do you have any guidance on exceptions for employers with fewer than 50 employees?

Small employers can deny an employee's request for paid sick leave or expanded FMLA to care for their son or daughter due to school closure or day care unavailability if the employer can demonstrate (1) the leave would cause the small employer to stop operating at minimal capacity; (2) the employee's absence would pose a substantial risk to the financial health or operational capacity of the employer; (3) the small employer cannot find other workers who are able, willing, and qualified.

I am somewhat confused on the first 10 days with the Expanded FMLA leave to care for a child whose school or day care closed. Are they paid or unpaid? I thought I read somewhere that the first 10 days are unpaid?

The first ten days of leave under expanded FMLA are unpaid but an employee may take earned or accrued paid leave, as provided by the employer’s established policies. The employee may also use the paid sick leave under EPSLA for the first 10 days.

Will this FMLA expansion and Emergency Paid Sick Leave retro back any? Or does it only cover April 2nd and beyond?

FFCRA applies as of April 1, 2020 and is not retroactive.

Can we request documentation? Do we use an FMLA application?

An employee must provide his or her employer documentation in support of paid sick leave or expanded family and medical leave. Such documentation must include a signed statement containing the following information: (1) The employee’s name; (2) the date(s) for which leave is requested; (3) the COVID�19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID�19 qualifying reason. Additional documentation may be required, depending upon the reason for the leave request.

If we know someone is sick and not working or if we know of parents whose kids are home due to school cancellations, are we required to give them an FMLA request form?

An employee requesting to take paid sick leave to care for his or her child can be required to provide: (1) The name of the child being cared for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID�19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

If an employee refuses to come to work due to anxiety over possible exposure to COVID-19, would he or she be eligible for the new paid sick leave and/or pay under the Emergency FMLA expansion law?

Leave taken by an employee for the purpose of avoiding exposure would not be protected under FMLA.

If an employee has exhausted their FMLA for the year, do we have to extend the 12 weeks to accommodate the new COVID-19 FMLA act?

If an employee has exhausted their FMLA leave for the year, the employee is not entitled to an additional 12 weeks under extended FMLA.

What if we have an employee out on the new FMLA for coronavirus-related reasons, and we have to do a reduction in force and lay them off? Will we be liable for retaliation?

Taking the extended FMLA leave does not protect employees from layoffs, if the layoffs would have affected the employees regardless of the leave taken.

What if someone is already on an active FMLA and on the verge of exhausting this leave. If they have contracted COVID-19 while they're on their FMLA, do they get extended leave? Would this run concurrent with the standard 12 weeks?

Any leave under extended FMLA counts against the 12 workweeks of FMLA leave to which employees are otherwise entitled. So, if an employee has used part of their 12 weeks of FMLA, they would only be entitled to the remainder for extended family leave.

If employees were termed or laid off prior to April 2nd, are they eligible for the emergency sick act and revisions to the FMLA?

If an employee was laid off or terminated prior to April 1, 2020, those individuals are not eligible for paid sick leave or extended FMLA under FFCRA.

We currently use a 12-month rolling calendar to calculate how many FMLA hours an employee has available to use for the future. Would we continue to look back at how many FMLA hours an employee has used to dictate how many EFMLEA hours the employee has available to use now?

Is the expansion of FML provisions optional for healthcare workers?

Employers may exclude health care providers and emergency responders from the extended family leave provisions and EPSLA.

Is the FMLA to care for a child available to team members who are in essential functions at an essential business, such as running a senior care facility?

Employees who are considered health care providers and emergency responders may be exempted from the extended FMLA provisions. Employees who are not health care providers or emergency responders but are otherwise eligible qualify for the extended FMLA provisions.

Does the FMLA apply if my state mandates that we stay at home?

The EPSLA applies to state quarantine orders.

Hiring, Firing, Furlough

Are you required to maintain benefits under Furlough?

The requirement to maintain benefits will be determined by your specific benefit plan policies.

Is the USCIS considering allowing employers to verify I-9 documents virtually?

Yes, USCIS released guidance that allows employers to visually inspect I-9 documents remotely if the employees are teleworking.

How do we handle the verification of I-9 documentation for new hires given travel restrictions?

DHS provided guidance that does not require in-person inspection of Form I-9 documents. Employers may inspect Form I-9 documents remotely and retain copies of the documents. When normal operations resume, employers should add "documents physically examined" with the date of inspection to the Section 2 'Additional Information' field of the Form I-9.

Can we accept expired driver's licenses for I-9 purposes?

If the employee's state ID or driver's license expired on or after March 1, 2020, and the document expiration date has been extended by their state due to COVID-19, then it is acceptable as a List B document for Form I-9. Enter the document's expiration date in Section 2 and enter "COVID-19 EXT" in the Additional Information field. Employers may also attach a copy of the state motor vehicle department’s webpage or other notice indicating that their documents have been extended.

Sick Leave and Paid Time Off

As an employer, can I require an employee to provide a written health care provider’s note (if in need of sick leave under section 5102(a)(2)) or a written statement from the employee himself (if in need of sick leave under section 5102(a)(3)) prior to awarding paid sick time?

Notes may be required by an employer, but the CDC is currently cautioning that they may be difficult to obtain during this pandemic.

If the employee is caring for someone else, the leave receives two-thirds pay, subject to a cap of $200 per day of leave and $2,000 in total.

With Emergency Paid Sick Leave, how far back should we look to determine an employee's average hours if they are not a full-time employee and don't have a regular work schedule?

For part-time, variable-hour employees, employers must first calculate the average number of hours the employee was scheduled per day over the six months immediately prior to the date the employee begins taking paid sick leave. Once the employer calculates the daily average, it multiplies that number by 14 to get the two-week average. In calculating the amount the employee with an irregular schedule worked per day, the employer must look at calendar days, not just workdays, to avoid overcalculating the number of hours worked.

When an employee tells you that he or she has been exposed to COVID-19, what about OSHA reporting requirements?

COVID-19 is a recordable illness, if the confirmed case of COVID-19 is work-related and involves at least one of the recording criteria.

Does the 10 days of emergency paid sick leave apply to employees who are self-quarantined without being sick or having been exposed?

Leave taken by an employee for the purpose of avoiding exposure would not be protected under FFCRA or subject to paid sick leave.

Should the company PTO and state required PTO be used before the new Emergency Paid sick leave or is it an either/or?

An employee can elect to use other paid leave that is applicable, or, an employer can mandate that the employee use other paid leave during this period just as it can with other FMLA leave.

If an employee doesn't want to come to work, is considered to be in a high-risk group, and has a note from the doctor stating they must shelter in place, do they need to be paid or does the employer have to let the employee work from home (if they are able)?

FFCRA covers paid sick leave when employees are unable to work because they have been advised by a health care provider to self-quarantine for a reason related to COVID-19.

Employee is experiencing symptoms, seeking medical diagnosis, but can’t see doctor, do we need to pay for the waiting period even though there is no diagnosis?

FFCRA covers paid sick leave when an employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.

HR and Miscellaneous

Are we allowed to take our employees' temperature?

Yes, employers may take their employees' body temperature.

Regarding HIPAA regulations and COVID-19, can our managers ask employees who call in sick about their symptoms and if they have been diagnosed with the virus?

During a pandemic, employers may ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Are we allowed to announce the name of an employee that is positive with COVID-19, or must we keep the name anonymous due to HIPPA?

Employers must maintain the confidentiality of employees who tested positive for COVID-19.

If someone has a doctor's note that says they need to be home, do they need a doctor's note to return to work?

Doctor's notes can be required, but the CDC cautions it may not be practical for employees to obtain them at this time.

If an employee exhibits symptom and has the COVID-19 test but results are not available for 7 days, what is the responsibility of the employer?

Employees are eligible for paid sick leave under FFCRA if they are exhibiting symptoms and are seeking a medical diagnosis.

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This document was prepared by Colleen Rynne, an attorney on Ultimate Software's Compliance Advisory Team.