Tag Archives: Employers

Join Us for a Webinar: Employment Law and Tax Developments Businesses Might Have Missed While Focused on COVID-19

Over the last several months there have been developments in employment law and tax not directly related to COVID-19 that you may have missed. While businesses have been focused on responding to COVID-19—learning about the Families First Coronavirus Relief Act, the PPP, and developments with unemployment—the Supreme Court and government agencies have been making decisions that impact the workplace.

We invite you to join us for a complimentary, one-hour Zoom webinar to discuss some of these decisions and how they may impact the workplace.

TOPICS INCLUDE:

  • Expansion of Title VII protection of sex to include sexual orientation and gender identity
  • Expansion of rights of religious employers
  • Changes to certain provisions of the Fair Labor Standards Act
  • Updates from the National Labor Relations Board on workplace investigations and work email
  • Amendment to the Florida Civil Rights Act
  • Tax planning for 2020
  • Tax provisions supporting businesses

Wednesday, August 12
10:00 – 11:00 a.m. 

REGISTER NOW >

PRESENTED BY:

Jennifer Fowler-Hermes
Board Certified Labor & Employment Attorney | Williams Parker

Gail E. Farb
Labor & Employment Attorney | Williams Parker

Beth C. Ebersole
CPA, ABV | Kerkering, Barberio & Co.

Moderator:
Thomas B. Luzier
Board Certified Real Estate Attorney | Williams Parker

Amounts Paid to Employees for Sick and Family Leave Wages Are to be Reported on W-2s

Yesterday, July 8, 2020, the Internal Revenue Service (“IRS”) issued Notice 2020-54, which provides guidance to employers on reporting qualified sick and family leave wages paid to employees under the Families First Coronavirus Response Act (FFCRA). Enacted this past March 2020, the FFCRA generally requires employers with fewer than 500 employees to provide paid leave due to certain circumstances related to COVID-19.  Notice 2020-54 directs employers to “separately state” each of the paid sick and family leave wage amounts either in Box 14 of Form W-2 or in a statement that accompanies the Form W-2.

The guidance provides employers with adaptable model language for use in the Form W-2 instructions for employees. An excerpt of that language is as follows:

“Included in Box 14, if applicable, are amounts paid to you as qualified sick leave wages or qualified family leave wages under the Families First Coronavirus Response Act. Specifically, up to three types of paid qualified sick leave wages or qualified family leave wages are reported in Box 14:

  • Sick leave wages subject to the $511 per day limit because of care you required;
  • Sick leave wages subject to the $200 per day limit because of care you provided to another; and
  • Emergency family leave wages.”

The Notice goes on to state that the wage amount required to be reported by employers on Form W-2 will provide self-employed individuals who are also employees with the information necessary to determine the amount of any sick and family leave equivalent credits they may claim in their self-employed capacities. We recommend that employers review the Notice’s model language for their Form W-2 instructions.

Watch On-Demand: Webinar on Novel Issues Relating to Employees Working Remotely

As more employees work from home, employers are facing questions about how to comply with employment laws in a manner that minimizes risks associated with remote work. Our Business Solutions team recently presented a webinar addressing many of the employment-related issues arising from remote work. The head of our Labor & Employment practice, Jennifer Fowler-Hermes and L&E attorney John Getty were joined by Brad Hall, a workers’ compensation defense attorney, to discuss a variety of topics, including how to properly track work hours, complying with employment laws, the importance of telework agreements, and whether and to what extent workers’ compensation laws apply. Watch it on-demand below.

 

DOL Answers More Questions About Paid Sick Leave and Expanded Family and Medical Leave Under the FFCRA

On April 6, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued yet another series of questions and answers to provide additional guidance regarding the protections and relief offered by the new Families First Coronavirus Response Act (FFCRA). The DOL also reorganized its FFCRA questions page by categories (definitions, eligibility, coverage, application, and enforcement), in addition to its questions and answers by number.

As noted in our recent blog post, the FFCRA provides expanded paid and unpaid family and medical leave broader than the Family and Medical Leave Act of 1993 (FMLA) and paid sick leave to certain employees affected by COVID-19. In addition, it provides help for individuals and businesses impacted by the pandemic—like reimbursement through a refundable tax credit available to private employers. The FFCRA became effective April 1, 2020, and will expire at the end of the year. It is enforced by the WHD. Continue reading

Documents Employers Should Keep for COVID-19 Related Paid Leave

Under the Families First Coronavirus Response Act, covered employers are now required to provide Paid Sick Leave or Expanded Family and Medical Leave to employees affected by the COVID-19 public health emergency. (See our prior coverage of the paid leave under the Families First Act.) Recently, the Department of Labor (DOL) and the Internal Revenue Service (IRS) provided guidance to employers about what notice and supporting documents employees must provide employers to obtain such leave—presuming employees qualify. Based on the above-referenced guidance, below we address common questions on the notice and documentation requirements.

*Please note that this article presumes a general familiarity with the Paid Sick Leave or Expanded Family and Medical Leave provisions of the Families First Act. For a refresher on those provisions, please review the blog post linked above.

If an employee is sick and wants to use the new Paid Sick Leave, can an employer require them to give notice?

Yes, employers may require that employees follow reasonable notice procedures when taking Paid Sick Leave.

What would be considered reasonable notice procedures?

Absent unusual circumstances, what is reasonable will depend on the facts and circumstances of each situation. Generally, it will be reasonable for an employer to require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave.

How soon should an employee provide notice of the need for leave?

Although the DOL encourages employee to provide notice as soon as practicable, employees can provide notice up to the day after the need becomes apparent.

What if the employee fails to give notice?

An employer should notify the employee that they failed to give notice. Before denying the leave request, the employer should provide the employee a chance to submit the required information and documentation.

Who can give the notice: the employee or someone on their behalf? 

An employee or an employee’s spokesperson (e.g., spouse, adult family member, or another responsible party) – if the employee is unable to do so personally – can notify an employer about the need for leave.

What should this notice contain?

It is reasonable for an employer to require verbal notice along with enough information to determine if the requested leave qualifies for either Paid Sick Leave or Expanded Family and Medical Leave.

Can an employer require documentation from the employee to support the need for leave?

Yes, according to DOL guidance, an employer may require documentation but only the documents identified in the regulations.

What information and documents may an employer require from an employee?

Based on current guidance from the DOL and the IRS, an employer can request the following information and documents to support a request for leave:

  1. Employee’s name;
  2. Date(s) for which leave is requested;
  3. Qualifying reason for the leave;
  4. An oral or written statement that the employee is unable to work, including through telework, because of the qualified reason for leave; and,
  5. Depending on the qualifying reason for the leave, the employee must also provide the following information or documents:
    • If the leave is due to a qualifying quarantine or isolation order, then the employee must provide the name of the federal, state, or local government entity that issued such order;
    • If the leave is because the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, then the employee must provide the name of the physician that issued the self-quarantine guidance;
    • If the leave is because the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis from a health care provider; it is uncertain what additional information an employee must provide since the regulations, at the moment, do not speak to this issue.
    • If the leave is because the employee caring for an individual who is subject to a qualifying quarantine or isolation order, then the employee must provide the name of the federal, state, or local government entity that issued such order;
    • If the leave is because the employee caring for an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, then the employee must provide the name of the physician that issued the self-quarantine guidance;
    • If the leave is because the employee is caring for his or her child whose school or child care options have been closed or made unavailable for any time related to COVID-19, then the employee must provide:
      • The name of their son or daughter being cared for;
      • The name of the school, place of childcare, or childcare provider that has closed or become unavailable;
      • A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes Paid Sick Leave or Expanded Family and Medical Leave; and,
      • Concerning the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide such care.

Can an employer authenticate the information supporting the employee’s request for leave?

The newest DOL regulations do not directly address this question. However, because the new laws expand the FMLA, there is an argument that DOL guidance on medical certification under the regular FMLA would apply to these new leaves—albeit the original regulations are not completely analogous.

Under the original regulations, employers’ representatives may contact a health care provider to clarify or authenticate that provider’s certification for the need for leave. It is important to note that a human resources professional, a leave administrator, or a management official must be the one to make the contact. An employee’s direct supervisor should never contact the employee’s health care provider to obtain authentication. However, to properly conduct an authentication, employers’ representatives need to provide the health care provider with a copy of the certification and confirming that the information contained on the certification form was completed or authorized by the health care provider who signed the document.

With the Paid Sick Leave or Expanded Family and Medical Leave, there is no signed certification that employers may authenticate in a manners similar to the original regulations. It may be that an authorized employer representative may contact one of the entities or individuals to verbally confirm that the information the employee provided because those steps match the spirit of the prior regulations—presuming no additional questions are asked.

Even if that is the case, there are likely practical concerns. Government agencies and health care providers are already taxed during this public health emergency; therefore, obtaining a timely response may be challenging.

What should an employer do if the employee provides the notice and supporting information verbally?

Employers likely should prepare a memorandum for the employee’s file confirming all of the information listed above along with the name of the employer’s representative who verbally received the notice and supporting information. Employers could then follow up with the employee for any further supporting documents to allow employers to obtain applicable tax credits.

Are there any other documents will an employer needs to maintain?

Yes, according to the IRS, it appears that employers—to support any tax credits—will need to maintain the records of the written or verbal statements described above. Additionally, the employer should maintain:

  1. Documents showing how the employer determined the amount of qualified sick leave or family leave wages paid to the employee—these documents would likely include the supporting payroll data along with a memorandum showing how the wage calculations were derived. (Remember that employees do not necessarily receive full compensation while on Paid Sick Leave or Expanded Family and Medical Leave under the Families First Act.)
  2. Documents showing how the employer determined the amount of qualified health plan expenses that the employer allocated to wages. (See IRS guidance at Question 31 for methods to compute this allocation.)
  3. Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, the employer submitted to the IRS.
  4. Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS (or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on Form 941).

How long will an employer need to maintain these documents?

An employer should maintain these records for at least four years.

Williams Parker has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from COVID-19. This team is closely monitoring legal developments and guidance from federal, state, and local government and public health officials. For the latest updates, please visit our website.

Join Virtually: Labor & Employment Strategies Around COVID-19 Relief

We invite you to join our partner Jennifer Fowler-Hermes for a virtual presentation hosted by the Lakewood Ranch Business Alliance this Wednesday, April 8.

The program will answer questions around the new aid packages available to businesses as a result of the COVID-19 crisis. With the rollout of these new programs, business owners are scrambling to quickly understand the details surrounding the offered benefits, applications processes, and eligibility requirements. Jennifer will share guidance on how employers should approach the situation from an HR perspective and will be joined by a partner with Kerkering Barberio to provide insight on the tax and accounting implications.

Participants may join by video or phone. For more details and to register, visit LWRBA.

The Department of Labor Provides a Summary Explanation of Unemployment Benefits under the CARES Act

On March 28, 2020, Florida agreed to participate in the unemployment provisions of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, known as the Relief for Workers Affected by the Coronavirus (RWAC). On April 2, 2020, the Department of Labor issued guidance as well as a chart summarizing the different programs and the length of time the programs will be in effect. We summarize the major highlights for Florida employers below.

Before RWAC, the maximum unemployment benefit for those that would normally qualify for benefits in Florida was $275 a week, paid bi-weekly. Generally, the maximum number of weeks someone can receive benefits is 12 weeks. This 12-week period may be extended if Florida’s unemployment rate increases above 5 percent. If this occurs, an additional week of eligibility is added for every half percent of increase above the 5 percent unemployment rate. Even so, when the additional weeks of eligibility are added to the initial 12 weeks, total benefits are still capped at 23 weeks.

Now, after RWAC and during the COVID-19 public health emergency, the maximum weekly benefits and maximum weeks of available benefits are temporarily increased. For those that would otherwise qualify for benefits, the maximum weekly benefit is a total of $875 a week through July 31, 2020. The first $275 is the normal maximum benefits under Florida’s program. An additional $600 is added through the Federal Pandemic Unemployment Compensation (FPUC) program. For those persons that would not ordinarily qualify for benefits in Florida, the maximum benefit is 50 percent of the average benefit in Florida plus the $600 from FPUC. Continue reading

UPDATED: Families First Coronavirus Response Act: Employment Law Guidance Specific to Healthcare Providers

 

 

 

 

This post was updated March 29, 2020. Updates are shown in red. 

This post discusses the changes to the Family and Medical Leave Act (“FMLA”) created by the recently passed Families First Coronavirus Response Act for employers in the healthcare industry. For information about potential business financial assistance and tax issues related to the COVID-19 coronavirus (“COVID-19”) epidemic, make sure to review our firm’s Business and Tax Blog, which is being updated to identify opportunities for businesses.

We will continue to update this post as there are new developments.

What is in this new Families First Act?
The Families First Act requires that in the face of the COVID-19 epidemic, covered employers must provide certain paid FMLA and sick leave to certain private employers with fewer than 500 employees and public employers.

When does the new Families First Act go into effect?
The new rules go into effect on April 1, 2020.

Are there any different rules for employers who operate in the healthcare industry?
To some extent yes. The Families First Act may allow an employer of an employee who is a “healthcare provider” or “emergency responder” to elect to exclude that employee from the application of the paid FMLA and sick leave portions of the law.

Does this law mean that each employee of an employer who operates in the healthcare industry is exempt from these new leave rights?
At the moment, no. It would be consistent with the Families First Act’s purpose to include in the definition of healthcare provider (and, thus, the exemption) all employees needed by the “healthcare provider” or “emergency responder” to provide care during the public health emergency. However, under the definition discussed below, it does not appear that an employer can elect to exempt any employee other than someone who would be considered a “healthcare provider” or “emergency responder” unless the Department of Labor (“DOL”) expands the definition. Thus, for the moment, employees who would not be considered “healthcare providers” or “emergency responders,” such as receptionists, cleaning staff, bookkeepers, or other office staff members, are not exempted from this law.

 

Which employees would be considered a “healthcare provider”? (Updated March 29, 2020)
Based on this new Families First Act’s text, the FMLA’s prior definition of who is a “healthcare provider” applied. This definition was usually narrow and did not effectuate the purpose of the act. On March 28, 2020, the DOL provided clarification in response to question 56 of its Questions and Answers, and stated:

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, 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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Although this definition is not currently set forth in the FFCRA, and is not yet included in regulations issued by the DOL, this guidance from the DOL should considered persuasive until such time that regulations are released by the DOL.

What about CNAs, Nurses, Activities Directors, Physical Therapists, and other individuals who directly interact and provide care to patients? (Updated March 29, 2020)
Based on the DOL’s March 28, 2020, response to who may be excluded by their employer from paid sick leave and/or expanded family and medical leave, such persons may be excluded. Keeping in mind that the DOL has strongly encouraged employers to be judicious when using this definition to exempt healthcare providers from the provisions of the FFCRA.

Does this law mean that each employee of an employer who operates in the healthcare industry may be exempt from these new leave rights? (Updated March 29, 2020)
Yes. However, the DOL has strongly encouraged employers to be judicious when making decisions to exempt health care providers from the provisions of the FFCRA.

Which employees would be considered an “emergency responder”? (Updated March 29, 2020)
The Families First Act does not define the phrase “emergency responder.” However, on March 28, 2020, the DOL providing the following definition:

[A]n 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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Although this definition is not currently set forth in the FFCRA, and is not yet included in regulations issued by the DOL, this guidance from the DOL should considered persuasive until such time that regulations are released by the DOL.

What steps would an employer need to take to elect to exclude a “healthcare provider” or “emergency responder” employee from this new law?
Unknown at this time, and the answer may depend on agency guidance.

For the time being, employers may wish to take steps somewhat similar to the ones that they would take under DOL guidance for “key employees,” i.e., salaried, eligible employees who are among the highest paid 10% of all employees at the worksite and for whom unpaid leave and job restoration would cause an employer substantial and grievous economic harm. Thus, like with “key employees,” employers may wish to provide a written notice to the employee at the time the employee gives notice of the need for leave. The notice would advise that the employee qualifies as a healthcare provider or emergency responder, and that the leave could not be allowed during this time.

Again, further guidance from the DOL likely will be needed to confirm the proper steps an employer must take.

For additional information regarding the healthcare industry specifically, and running a business during this pandemic, visit our COVID-19 resource page.

Updated by Jennifer Fowler-Hermes, who may be reached at (941) 552-2558.

John C. Getty
jgetty@williamsparker.com
(941) 329-6622

Leave for Family of Members of the Armed Forces Deployed to a Foreign Country (Part V of FMLA Series)

In light of recent military deployments, employers should be reminded of Qualifying Exigency Leave provided for by the Family and Medical Leave Act (FMLA). We have been posting a series about navigating the complex maze that is the FMLA. At this time, we are now taking a turn down this multicursal puzzle to address the first of two specific types of leaves that are only available for family members of covered service members, the Qualifying Exigency Leave. In Part VI of this series, we will address leave to care for a covered service member with a serious injury or illness.

Eligible employees may take up to 12 weeks of FMLA leave because of a qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is a military member on covered active duty (or has been notified of an impending call or order to active duty status). This leave is provided for one or more of the following reasons:

  1. Short-notice deployment
  2. Military events and related activities
  3. Childcare and school activities
  4. Financial and legal arrangements
  5. Counseling
  6. Rest and recuperation
  7. Post-deployment activities
  8. Parental care
  9. Additional activities

What is covered active status?

This means the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation during a war or national emergency declared by the President or Congress.

How can an employer verify the military member’s covered active duty status?

The employer can contact the Department of Defense.

When a parent is seeking leave related to a child’s active military duty, is there an age limit?

No.

What is a short-notice deployment?

It is when the military member is notified of an impending call to covered active duty seven or less calendar days from the date of deployment.

What events and related activities qualify for exigency leave?

Any official ceremony, program, or event sponsored by the military that is related to the covered active duty or call to covered active duty status of the military member; and to attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the covered active duty or call to covered active duty status of the military member.

Similarly, what childcare and school activities qualify for exigency leave?

  • Arranging for alternative childcare for a child of the military member when the covered active duty or call to covered active duty necessitates a change in childcare arrangement
  • Providing childcare for a child of the military member on an urgent, immediate need basis (but not routine everyday basis)
  • Enrolling or transferring a child of the military member to a new school or day care facility
  • Attending meetings with staff at a school or daycare facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, and meetings with school counselors

Can leave taken for childcare and school activities apply to adult children of military members?

No, for the purposes of these qualifying exigencies, the child of the military member must be either under the age of 18 or, if over 18, incapable of self care because of a mental or physical disability at the time that FMLA leave is to commence.

What type of financial or legal arrangements are covered?

Those required to address the military member’s absence while on covered active duty or call to covered active duty status, such as financial and healthcare powers of attorney, transferring bank account signature authority, obtaining military ID cards, or preparing/updating a will or living trust.

Is there a limit to the amount of exigency leave that can be taken for rest and recuperation?

Yes. The limit is 15 calendar days to spend time with a military member who is on short term temporary Rest and Recuperation leave during deployment.

Are there requirements on who can step in to assist with the care of a military member’s parent?

Yes. Although the employee taking leave does not need to be related to the military member’s parent, the military member must be the parent, spouse, or child of the person taking leave.

Does entitlement to exigency leave end when the deployment is over?

No, arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military are covered if within 90 days following the termination of the military member’s covered active duty status. Further, issues that arise from the death of a military member while on covered active duty status, such as making funeral arrangements and attending funeral services are also covered.

What if there are other issues that arise from a military member’s covered active duty that are not specifically spelled out in the regulations?

They may be covered, if the employer and employee agree that such leave qualifies as an exigency and agree to both the timing and duration of such leave.

As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The third post addressed FMLA leave for the birth or adoption of a child. The fourth post  addressed issues related to an employee taking leave for his or a family member’s serious health condition. The next post in the FMLA series will address to care for a covered service member with a serious injury or illness.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Florida’s 2020 Minimum Wage Increase

On January 1, 2020, Florida’s minimum wage increased from $8.46 to $8.56 an hour ($12.84 for overtime). If employers have not already done so, they should make appropriate pay adjustments for their minimum wage earners. Employers with minimum wage employees (including tipped employees) that have already issued their first payroll for the year without this ten-cent adjustment, should remedy any underpayment as soon as possible but no later than the next payroll by providing the pay difference, including any additional overtime, for the prior workweek.

Failing to pay non-exempt employees Florida’s statutory minimum wage can result in claims against employers pursuant to Section 24, Article X of the State Constitution and Section 448.110, Florida Statutes. The maximum tip credit ($3.02) that can be taken by Florida employers with tipped employees will remain the same, but the direct wage paid to tipped employees will increase from $5.44 to $5.54 an hour.

In addition to raising the minimum wage, Florida employers are required to post a minimum wage notice in a conspicuous and accessible location. You can download the 2020 Florida Minimum Wage Notice from the Florida Department of Economic Opportunity’s website. This notice is in addition to the requirement that employers post a notice regarding the federal minimum wage (which has not been increased). There will also be commercially available Florida-specific “all-in-one” posters that satisfy both the federal and state notice requirements.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558