Emergency paid sick leave must be taken in full day increments unless employee is teleworking.
Intermittent use of FMLA is permissible, flexible schedules, may be partially paid with emergency FMLA.
First 10 days of FMLA are a wait period. Up to employee to use the emergency sick leave or company
provided time off policies. Employer may not force use of either during initial ten- day period.
Insurance coverage continues during use of leave.
Employers may allow employees to supplement partial payments under emergency leave with existing
PTO policies.
After the 10 day wait period for FMLA, employers may require employees to use existing time off to
make up difference in 2/3 payment.
No tax credits for company provided pay or time off benefits.
Job protection applies upon reinstatement under FMLA leave. Exceptions, key employee, layoff,
business closure, employer has fewer than 25 employees, and employee took leave to care for son or
daughter whose school or place of care was closed, or whose child care provider was unavailable, and all
four of the following hardship conditions exist:
• position no longer exists due to economic or operating conditions that affect employment and
due to COVID-19 related reasons during the period of leave;
• employer made reasonable efforts to restore employee to the same or an equivalent position;
• employer makes reasonable efforts to contact employee if an equivalent position becomes
available; and
• employer continues to make reasonable efforts to contact employee for one year beginning
either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after
leave began, whichever is earlier.
Businesses subject to FMLA prior to April 1 may use their measurement period to determine how much
FMLA time an employee has remaining. This amount during the 12 – month measurement period may
be deducted from the amount of emergency leave time available to the employee.
Small Business (Fewer than 50 Employees) Exemption for School Closures / Childcare Clarified:
The DOL has clarified that small employers with fewer than 50 employees, including religious or
nonprofit organizations, may claim this exemption if their authorized officer determines one of the
following applies:
• Providing FMLA+ and/or EPSL childcare leave (school closures and childcare unavailability)
would cause the business’s expenses and financial obligations to exceed its revenues and cause
the business to cease operating at a minimal capacity;
• The employee’s absence would entail a substantial risk to the business’s financial health or
operational capabilities because of specialized skills, knowledge of the business, or
responsibilities the employee possesses; or
• There are insufficient workers who are able, willing, and qualified to perform the labor or
services provided by the employee requesting childcare leave, and these labor or services are
needed for the business to operate at a minimal capacity.
School closures/childcare reasons for FFCRA leave are the only reasons for which this exemption is
available (if one of the above criteria is met).
Health Care Provider & Emergency Responder Employee Exception
Employers can elect to exclude from coverage, who include 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 similar to such institutions. 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.
[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.
State or Local Leave in Addition to EPSL and FMLA
Leave taken under EPSL and/or FMLA is in addition to any other forms of sick/personal leave the
employee has earned under an increasing number of state and local paid leave laws and ordinances
offering similar protections.
Full Time Employee
An employee normally scheduled forty (40) hours per week.
Job Restoration Rights
Employers must provide employees using EPSL or FMLA the same or equivalent job they held before
taking leave. If an employer lays off an employee for a legitimate business reason during leave, the
employee does not have such a right to reinstatement.
Employers can deny reinstatement to the same or equivalent position to an individual who qualifies as
an FMLA “key” employee (salaried employee who is among the highest-paid 10% of all the employer’s
employees within 75 miles of the employee’s worksite), or who works for an employer with 24 or fewer
employees and takes school closure / childcare leave, and all four of the following hardship conditions
exist:
The position no longer exists due to economic or operating conditions that affect employment and are
due to COVID-19-related reasons during the leave period;
Employer made reasonable efforts to restore the employee to the same or an equivalent position;
Employer makes reasonable efforts to contact the employee if an equivalent position becomes
available; and
Employer continues to make reasonable efforts to contact the employee for one year, beginning on the
date COVID-19 leave ends or the date 12 weeks after leave began (whichever is earlier).
Definition of Child
Under both the EPSL and FMLA entitlements, employees can take leave to care for a child whose school
or place of childcare closes, or whose childcare provider is unavailable, due to COVID-19. definition of
child under the FFCRA will also include a child 18 years of age or older with a mental or physical
disability who is incapable of self-care due to the disability.
Emergency Leave Counts Toward Health Coverage Eligibility
Time employees take under FFCRA leave instead of actively working counts towards satisfying the
eligibility period requirements.
Business Size Requires a “Live” Calculation
The date-of-absence calculation standard will require employers to which the law will not apply on April
1 to monitor employee numbers. If employee numbers drop below 500, the law will apply during the
time they employ 499 or fewer employees; and if numbers later increase to 500 or more employees, the
law will not apply.
Regular Rate
The DOL clarifies that employers must include commissions, tips, or piece rate compensation in regular
rate calculations. If an employer does not apply a tip credit toward payment of the minimum wage for
FLSA tipped employees, the regular rate need not include tips customers provide these employees.
Documentation of Qualifying Need for FFCRA Leave
For school closures and childcare-related need for leave, additional documentation may be required.
The IRS is expected to create forms for this purpose. Employers may still request appropriate supporting
documentation although employers are encouraged to be flexible with this requirement. Employers
need not provide leave if employees do not provide documentation sufficient to support a tax credit.
Topping Up & Tax Credits
Tax relief will be unavailable for emergency paid sick and/or family leave that exceeds the FFCRA limits.
Unemployment
UI benefits – states administer, reimbursed by DOL, Governor in Nevada has waived wait periods and
work search requirement.
$600 dollars is in addition to the base amount calculated by NV UI. The maximum benefit is $427 a week
and is calculated using previous work history and wages. This supplement will be paid on claims until
July 31, 2020, then benefits revert back to the base amount.
NV UI approves unemployment claims; however, anyone who is furloughed, laid off or terminated
should be eligible for benefits.
Time period for benefits has been extended from 26 weeks to 39 weeks.
Now available to independent contractors and gig workers.
Furlough/Layoff/RIF
Furlough – reduction in hours scheduled or pay, forced unpaid time off
Layoff – no work, goal to bring employees back to work
RIF – permanent separation
CARES ACT is optional for employers
Employee Retention Credit
50% refundable payroll tax credit of wages paid by employers to employees during the COVID crisis.
Available based on two (2) criteria;
Full or partial suspension of business due to COVID 19 (shelter in place, non- essential businesses) In NV
this has been extended to at least April 30. OR
If running business, no one coming in, and have a reduction in gross receipts of 50% or more compared
to same quarter last year.
If fewer than 100 employees, all wages qualify for credit whether business is closed or not.
If more than 100 employees – qualified wages are wages paid to employees when not providing services
due to COVID 19 circumstances.
Credit available on first $10,000 of compensation, including health benefits, paid to eligible employees
from March 13, 2020 through December 31, 2020.
EIDL – Economic Injury Disaster Loan
Up to $2 million at 3.75% for small businesses, and 2.75% for non – profits up to 30 year terms.
Also, $10k emergency, no payback, forgiven, payments made in 1-3 business days after completion of
EIDL loan application. May be used to pay fixed debts, payroll, accounts payable, and other bills. Not for
lost profits or expansion.
SS Tax Deferment
May pay SS tax at a later date. It is 6.2% on first $137,700 on wages paid per employee.
In effect March 27 – 12/31/2020
50% due 12/31/2021
50% due 12/31/2022
*Exception – if accessing PPP program loan, cannot defer SS.
Payroll Protection Program Act (PPP)
Runs from 2/15/2020 – June 30, 2020
Starting April 3, small businesses and sole proprietorships can apply.
Starting April 10, independent contractors and self- employed individuals can apply.
Designed to retain employees, covers payroll, (up to $100k per employee), commissions, bonuses,
retirement contributions, payroll taxes, commercial mortgages, commercial utility payments and other
business expenses.
Can not be used to pay wages in excess of $100k annually, those residing outside the US, or employees
already being paid sick/family leave time under the FFCRA.
No cost to apply
Loan may be forgiven up to the extent that the loan is used to pay allowable expenses during the eight
weeks following loan origination. Documentation required.
Decreases in wages and employees, forgiveness will be eliminated.
If you already laid off employees but call them back, some forgiveness of loan provided. At least 75% of
the forgiven amount must be used for payroll.
Loan may be up to 2.5 times the average monthly payroll costs for the previous year.
Maximum loan $10 million.
Payable over 10 years.
Maximum interest rate is 4%
Administered through lenders, up and running in the next two weeks.
Applies to employers with less than 500 employees.
All employees count as an employee. PT = one employee, no FTE’s.
NOTE: restaurants or hotels will be viewed by location for employee size, such as those that are part of
a larger management group by individual location
Business must have been operational on 2/15/2020
COVID 19 and Health Benefits
Most carriers are being flexible with layoff status as long as policy is paid for.
Encourage employers to establish process to ensure employee contributions received timely for those
on FFCRA which provides for continued health insurance benefits.
No ACA changes.
HD health plans now covering telemed.
Additional items added that are covered under flexible spend accounts.
Seeing several special enrollments and open enrollments. NV Exchange is open till April 14.
ERISA filings postponed by one year.
Employers may waive the reinstatement time period for employees brought back from layoff status.
Insurance carriers being flexible with work hour requirements and reductions in work hours due to
furloughs.
No copays or deductibles charged for COVID 19 related items and care.
Suggest you check with your individual carriers to see what is available.
Amend plan documents for any changes made to plans as these are the controlling documents.
Some employers are requesting changes to ER contributions under plan.
Nevada Division of Insurance has resources for employers.
Also visit broker Word and Brown website for resources.
COVID 19 and Retirement Plans
Distributions available to qualified participants, must meet one of the following criteria;
• Diagnosed with SARS-CoV-2 or Covid-19 by a test approved by the CDC.
• Spouse or dependent diagnosed with same.
• Experience adverse, financial consequences because of the participants quarantine, furlough,
layoff, reduced work hours, business closure, lack of childcare, or other factors determined by
the IRS due to Covid.
Self -certification is acceptable.
Distributions from participants vested account balance are;
Limited to $100000 of distributions paid on or after January 1,2020 and before December 31, 2020.
Exempt from 10% early withdrawal penalty for those younger than 59 1⁄2.
No 20% mandatory tax withholding.
May be indirectly rolled into an IRA or employer plan withing three years from date distribution taken.
Amounts not directly rolled into an IRA or employer plan are included in gross taxable income over three
tax years, beginning with the distribution year, unless participant elects to include all amounts in the
distribution year.
Loans
Plans may allow up to $100k or 100% of vested balance, whichever is less. March 27, 2020 – September
22, 2020. This is double the current loan limit.
Those with outstanding loans with payments dates between March – September may suspend
payments by a year, if plan allows. Suspension period is added to back end of loan, including accrued
interest.
Waiver of 2020 required minimum distributions. Age 70 1/2
Defined benefit pension plans – if due date of a minimum required contribution to a defined benefit
plan falls in 2020, due date extended until January 1, 2021.
Tuition Reimbursement/ Education Assistance
Employers may provide a student loan repayment to employees’ tax free up to $5,250 annually, applies
to tuition, fees, books. Not added to employee’s income. Covers any payments made after enactment
through December 31, 2020.
Telework
No OSHA Requirements for home offices
Remember computer security and review policies.
Employers do not have to provide or pay for office equipment.
May be considered a reasonable accommodation under ADA.
Resources:
https://prismgmg.com
https://www.irs.gov/coronavirus
https://www.dol.gov/coronavirus
https://www.wordandbrown.com/covid19
