Return to School and Emergency FMLA Leave

Due to the worldwide pandemic, this fall many schools are operating differently than they have in previous years with some schools operating fully in person, some fully remote, some a combination of the two, and some giving parents the choice between in person and remote learning. Employers may need to provide flexibility to their employees who have school aged children based on the operations of their child(ren)’s school.

Employers with less than 500 employees may be required to provide employees with up to 12 weeks of leave to care for their child in the form of emergency FMLA now required under the federal Families First Coronavirus Response Act (FFCRA).  This emergency FMLA requires covered employers to provide employees with 2/3 of their regular pay for the duration of their leave (a maximum of 12 weeks). Note: This pay is reimbursed to employers in the form of a payroll tax credit. More details about the FFCRA are available here: Families First Coronavirus Response Act.

The Department of Labor (DOL) has recently provided some clarification as to when the emergency FMLA leave under the FFCRA applies based on the way an employee’s child’s school is operating.

Schools Operating Completely In Person

When schools are operating with full time in person instruction, parent employees are not eligible for any emergency FMLA under the FFCRA for childcare reasons.

Schools Operating In A Full Virtual Setting

When schools are operating completely virtually/remotely with no in person instruction, an employee may be eligible for emergency FMLA leave and up to 2/3 of their regular pay for up to 12 weeks (or until the child can return to in person schooling).

Schools Operating In a Hybrid Model (Part In Person / Part Virtual Learning)

When schools are operating in a hybrid model where students report in person for learning some days and other days do remote learning, employees are only eligible for emergency FMLA leave on the days that the child is required to do remote learning and is unable to physically attend school for face to face instruction. On the days the employee is physically in school, the employee should be able to work as scheduled.

Schools Offering Parent Choice Between In Person and Virtual Learning

When schools are allowing parents to chose whether they send their children to school for in person instruction or keep them home for virtual or remote learning, an employee would not be eligible for emergency FMLA leave regardless of which option they choose for their student. This is because the school is “open” for in person learning and therefore the employee’s child (or children) has the opportunity to attend school in person so that the employee can return to work.

There may be an exception to this under the regular FMLA (for companies with 50 or more employees) if a child has a health condition that would require them to not attend school and would require the employee/parent to stay home to care for the child. This would not be covered under the FFCRA however and would not require the employee to be paid for this time off.

Combined Limits

The FFCRA was passed in March, so some employees may have already used some or all of their 12 week allowance. For example, if an employee took 6 weeks off in the spring to care for their child (or children) who’s school closed due to COVID-19, they would only have 6 more weeks available now.

Documentation

Employers should have employees sign a statement confirming that their child does not have an option to attend in person schooling and therefore the employee is unable to work because no other childcare options exist due to the school closure.

What to Do If An Employee Tests Positive for COVID-19

If you have an employee who tests positive for COVID-19, there are a number of steps you should take to ensure compliance with the various federal, state and local requirements. Detailed below some of the current recommendations for employers:

CDC Recommendations Continue reading

New Department of Labor FAQs Related to COVID-19 and Federal Labor Laws

The U.S. Department of Labor (DOL) recently issued more guidance for employers and workers related to rights and responsibilities under federal leave and wage and hour laws related to the current COVID-19 pandemic.

Updates were made to guidance for the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). Highlights of the updates are included below. Continue reading

Payroll Protection Program FAQ and Application Deadline Extended

The following video contains a brief overview of the Payroll Protection Program. Frequently asked questions regarding the program are below the video.

IMPORTANT UPDATE:

The application deadline for small businesses to apply for a loan through the Payroll Protection Program (PPP) has been extended from June 30, 2020 to August 8, 2020. There are still funds available in the program which gives small businesses that have not previously applied for a PPP loan almost 6 more weeks to apply. Continue reading

Joint-Employer Relationships: US Department of Labor Final Ruling

The U.S. Department of Labor has released a final ruling on what constitutes a joint employer relationship when it comes to liability for wage and hour matters. In a wage and hour investigation, a four-factor balancing test will be used by courts to determine whether two entities are considered joint employers. The four-factor test will assess whether the company: Continue reading

Preparing for Payroll in 2020

As 2019 winds down there are a number of things that you need to be aware of going in to 2020 to ensure compliance with federal and state wage and hour rules and other payroll related laws. Continue reading

IRS Releases Revamped 2020 W-4 Form

For the first time in many years the IRS has significantly revamped the Federal W-4 form for 2020.  This new form will be required to be completed by all new employees beginning on January 1, 2020. Any existing employees who wish to make changes to their federal tax withholding after January 1st will also need to use the new version. Employers can ask, but cannot require, all existing employees to submit a new version of the W-4 form. However, if an employee hired before January 1, 2020 does not complete a 2020 W-4 employers must use the last completed W-4 to calculate appropriate federal withholding for the employee. Continue reading

Daylight Savings Time and Wage and Hour Compliance

For employees working the graveyard shift, this weekend could be a bit longer than normal. With the exception of Arizona and Hawaii, Daylight Savings Time ends this Sunday, November 3rd at 2 AM local time for all U.S. states. At this time, thetime-371226_1280 clocks will roll back to 1 AM and repeat the hour. If you have employees that work at that time, your payroll liability will likely be higher than on a typical work day because of the additional hour worked unless scheduling modifications are made. Continue reading

New DOL Ruling Increases the Salary Threshold for Exempt Employees

club-2492011_1920This morning the Department of Labor (DOL) announced the new salary threshold for exempt employees. Currently employees who meet certain job duties tests and are paid on a salary basis equal to at least $455 per week can be considered exempt from overtime. The new ruling increases the salary threshold from $455 per week to $684 per week. This new threshold is effective January 1, 2020.

The new threshold means that employers who have exempt employees making less than $684 need to either reclassify the employees as non-exempt (making them eligible for overtime pay when working more than 40 hours in a workweek ) or need to increase wages to be above the weekly minimum. Continue reading

Veteran’s Day a Required Day Off in Some States

Veteran’s Day, a day to commemorate and honor those who have served in our nation’s military in the past and present, is November 11. It dates back to 1918 when the fighting ceased on the eleventh hour of the eleventh day of the eleventh month during World War I. For this reason, November 11, 1918 is largely considered the end of the war “to end all wars.” It was in November 1919 that President Wilson declared November 11 as the first Armistice Day. In a speech he stated, “To us in America, the reflections of Armistice Day will be filled with solemn pride in the heroism of those who died in the country’s service and with gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nations…” It was generally celebrated with parades and cessation in business beginning at 11:00 am.

However, much has changed since November 1919. Through the hustle and bustle of modern-day business, it has caused much confusion about how employers should observe Veteran’s Day and what legal obligations they have. In Iowa, Massachusetts, New Hampshire, and Oregon employers may be required to provide veterans a day off if they are normally scheduled. Continue reading