COVID-19 Resources

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Updates for Employers

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Families First Coronavirus Response Act - What We Know So Far

The Families First Coronavirus Response Act was signed into law on March 18, 2020.

In the coming days and weeks, federal regulatory agencies, including the Department of Labor (DOL) and Health and Human Services (HHS), will provide guidance on how to execute or implement the new requirements. In the meantime, employers and advisors must rely on a good faith interpretation of the act’s text.

We are sharing everything we know below and will not be able to answer follow up questions about the act until agency guidance has been released, which will take some time. We will update the HR Support Center when we have more information, and we encourage you to check there.

Summary

For certain circumstances related to COVID-19, employees will be eligible for:

  • Up to two weeks of sick leave (full pay for self, 2/3 pay for family care) for illness, quarantine, or school closures
  • Up to 12 weeks of Family and Medical Leave Act (FMLA) leave for school closures (10 days unpaid and then up to 10 weeks at 2/3 pay)

Effective Date of Law

  • The FMLA and Paid Sick Leave sections discussed below will go into effect on April 2, 2020 and expire December 31, 2020.
  • It appears there is no retroactive application.

Key Elements for Employers

  • FMLA expansion
  • Paid sick leave
  • Payroll tax credit
  • Group health plan benefit mandate


Emergency FMLA Expansion

Covered Employers: Employers with fewer than 500 employees are covered.

Covered Employees: Any employee who has been employed for at least 30 calendar days, though employers may be able to exclude employees who are health care providers or emergency responders.

Covered Leave Purpose: To care for a child under 18 of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a public health emergency, defined as an emergency with respect to the coronavirus declared by a federal, state, or local authority.

Duration:

  • Up to 12 weeks of job-protected leave.

Compensation:

  • No pay for first 10 days of leave (other paid time off, and emergency sick leave under the FFCRA, may be applied)
  • After 10 days, employers must pay two thirds of the employee’s regular rate of pay for the number of hours they would normally be scheduled to work, capped at $200/day and $10,000 total.

Reinstatement to Position After Leave:

The same reinstatement provisions apply as under traditional FMLA. However, restoration to position does not apply to employers with fewer than 25 employees if certain conditions are met:

  • The job no longer exists because of changes affecting employment caused by an economic downturn or other operating conditions that affect employment caused by a public health emergency; 
  • The employer makes reasonable efforts to return the employee to an equivalent position; and 
  • The employer makes efforts to contact a displaced employee if anything comes up within a year of when they would have returned to work.

Note: The act reserves the right for the Secretary to exclude certain care providers and first responders from the list of eligible employees and to exempt small businesses with fewer than 50 employees if business viability is jeopardized.

Emergency Paid Sick Leave

Covered Employers: Employers with fewer than 500 employees.

Covered Employees: All employees (no matter how long they have been employed), though employers may be able to exclude employees who are health care providers or emergency responders.

Covered Leave Purposes:

  1. When quarantined or isolated subject to federal, state, or local quarantine/isolation order;
  2. When advised by a health care provider to self-quarantine (due to concerns related to COVID-19);
  3. When experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. When caring for an individual doing #1 or #2 (2/3 pay);
  5. When caring for a child whose school or place of care is closed due to COVID-19 (2/3 pay); or
  6. When the employee is experiencing any other substantially similar condition (2/3 pay).

Duration of Leave:

  • Full time employees are entitled to 80 hours of paid sick leave.
  • Part time employees are entitled to sick leave equal to the number of hours worked on average over a typical two-week period.

Rate of Pay:

  • Sick leave must be paid at the employee’s regular rate of pay for leave used for the employee’s own illness, quarantine, or care.
  • Sick leave must be paid at two-thirds of the employee’s regular rate if taken to care for a family member or to care for a child whose school has closed, or if the employee’s childcare provider is unavailable due to the coronavirus.
  • Pay is capped at $511/day and $5,110 total for reasons 1, 2, and 3 described above.
  • Pay is capped at $200/day and $2,000 total for reasons 4, 5, and 6 described above.

Interaction with Other Employer-Provided Paid Sick Leave and other Paid Leave:

  • This act does not preempt existing state and local paid sick leave requirements.
  • Employers cannot require employees to use other leave first.
  • Sick leave provided for under the act does not carry over from year to year, and the requirements expire December 31, 2020.

Notice Requirements:

  • Employers must post a model notice, which will be provided by the federal government.

Note: The act reserves the right for the Secretary to exclude certain care providers and first responders from the list of eligible employees and to exempt small businesses with fewer than 50 employees if business viability is jeopardized.


Payroll Tax Credit

  • Applies to both the emergency FMLA expansion and the emergency sick leave.
  • Dollar for dollar credit for sick leave and paid FMLA wages against the employer portion of Social Security taxes.
  • Refund is possible for amounts that exceed what is available as a credit.
  • Limits on what can be claimed mirror the caps for what must be paid.

Health Plan Benefit Mandate

  • The act requires all insured and self-funded medical plans, including grandfathered plans, to cover diagnostic testing-related services for COVID-19 at 100 percent without any deductibles or co-pays.
  • Examples include services provided by doctors, emergency rooms, and urgent care centers leading up to the decision that testing is needed, along with the actual lab-based testing.
  • The mandate does not apply to treatment.


Read US H.R. 6201.  

New WA Paid Family & Medical Leave
Program starts Jan. 1
Starting Jan. 1, 2019, employers of all sizes must either start withholding premiums from employee paychecks or opt to cover their employees’ premiums themselves.
Starting in 2020, Washington will offer paid family and medical leave benefits to workers. A premium of employee gross wages will fund the program, with the cost shared by both employees and many employers. The Employment Security Department (ESD) administers the program.
Starting in 2020, eligible employees may take up to 12 weeks:
•    To care for themselves through serious illness or injury
•    To care for a loved one who is seriously ill or injured
•    To bond with a child coming into the family through birth, adoption or foster placement 
•    For certain military-connected events 
For more information now, visit www.paidleave.wa.gov/employers
Employers that average fewer than 50 employees do not have to pay the employer portion of the premium but must still withhold the employee portion or cover it themselves and meet all reporting requirements.
Employers who choose to withhold premiums from their employees may withhold up to about 63.333% of the total premium. The employer is responsible for paying the other 36.667%.
For more information on calculating premiums, download our Employer Toolkit and visit the link: www.paidleave.wa.gov/premium-calculator.
Jan. 1, 2020, all eligible employees in Washington must have access to paid family and medical leave benefits either through the state program or an employer-funded program, called a voluntary plan.
Unlike the federal unpaid Family Medical Leave Act (FMLA), businesses of all sizes must participate in the Paid Family and Medical Leave program. 
Employers that average fewer than 50 employees and choose to pay the employer share of the premium may be eligible for cash assistance grants when an employee goes on Paid Family and Medical Leave starting in 2020.
The benefits offered to employees under a voluntary plan must meet or exceed the benefits of the state plan. Voluntary plans must be approved by ESD and employers still need to meet the program’s reporting requirements. Download our Voluntary Plan Guide for more information. 
Your voluntary plan must be approved by ESD to avoid withholding requirements starting Jan. 1, 2019.
This isn't paid sick leave: Paid Family and Medical Leave is not the same as paid sick leave. In 2020, employees will be able to apply for leave when experiencing a qualifying event and have worked 820 hours (about 16 hours a week, on average) in the year leading up to the date of leave. This isn’t like paid sick leave; employees will file their claim with the Employment Security Department (ESD), and the employee payment will come from ESD. Typically, employees will have access to up to 12 weeks of paid leave. If employees face multiple events in a year, they may be eligible to receive up to 16 weeks and up to 18 weeks if they experience a serious health condition during pregnancy that results in incapacity.
For more information about paid sick leave, head over to L&I’s website.




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Sample employee Handbook materials

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WA FMLA-Sample Handout

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