Lincoln Absence Advisor

Q&A: Paid leave with FFCRA

April 30, 2020 Lincoln Financial Group Season 1 Episode 10
Lincoln Absence Advisor
Q&A: Paid leave with FFCRA
Chapters
Lincoln Absence Advisor
Q&A: Paid leave with FFCRA
Apr 30, 2020 Season 1 Episode 10
Lincoln Financial Group

The Family First Coronavirus Response Act (FFCRA) was the first bill enacted in response to the COVID-19 pandemic. In this episode of the Lincoln Absence Advisor podcast, Annie Jantz, Product Manager for Leave Management Services and Trish Zuniga, Compliance Lead for Leave Regulation, discuss important considerations such as the bill’s expanded reasons for leave, certification requirements, and eligibility and how these provisions affect businesses with less than 500 employees. They also review different scenarios and examine how the FFCRA interacts with other leave programs.

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

LCN-3061581-042720

© 2020 Lincoln National Corporation. All rights reserved.

Show Notes Transcript

The Family First Coronavirus Response Act (FFCRA) was the first bill enacted in response to the COVID-19 pandemic. In this episode of the Lincoln Absence Advisor podcast, Annie Jantz, Product Manager for Leave Management Services and Trish Zuniga, Compliance Lead for Leave Regulation, discuss important considerations such as the bill’s expanded reasons for leave, certification requirements, and eligibility and how these provisions affect businesses with less than 500 employees. They also review different scenarios and examine how the FFCRA interacts with other leave programs.

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

LCN-3061581-042720

© 2020 Lincoln National Corporation. All rights reserved.

Karen Batson:

Hi again everyone. This is Karen Batson , Marketing Manager for leave and disability at Lincoln Financial Group. On April 1st, the Family First Coronavirus Response Act or FFCRA took effect and we continue to hear many questions from our employers that have less than 500 employees on various details. In today's episode of Lincoln absence advisor , I am joined by two of my colleagues at Lincoln, Annie Jantz, Product Manager for leave management services and Trish Zuniga Compliance Lead for leave regulation and self-proclaimed FMLA nerd. We will do our best to answer these questions and discuss the impact of the FFCRA. Welcome ladies. Thanks for joining us today.

Annie Jantz:

Hi, glad to be here.

Karen Batson:

I'm excited to have you both here because I feel like this is a natural step in conversations we've been having, especially given our webinar back in February. So for our listeners, we hosted a webinar on the evolution of FMLA and had intended a few of these podcasts episodes to answer questions you submitted, but we felt we could not dive into those questions until we answered questions about the most recent evolution changes that came with the FFCRA. So could we do a quick summary of what changes came with the family first Coronavirus Response Act? Um , before we dive into some of the specific questions that we've been hearing from our partners.

Trish Zuniga:

Sure. And one thing to remember is that the Family First Coronavirus Response Act or FFCRA, it provides this whole slew of responses. So let's not forget that this was the first bill that was enacted in response to this pandemic. So aside from providing paid leave, it established free Coronavirus testing and it supported strong unemployment benefits and it expanded food assistance. And for today, let's just focus on the paid leave provisions, which is basically providing expanded paid sick leave and expanded family and medical leave to eligible employees. Under the standard FMLA program there's just certain qualifying reasons for leave that were expanded with the FFCRA because under a standard FMLA, you could only take leave once you have a serious health condition or your family member has a serious health condition and you're needed to care for them. But with Coronavirus, there was just so many more reasons that an employee could be out of work or unable to work because of the pandemic. So even the concept of an isolation order or a self-quarantine, that's not necessarily a serious health condition under the standard FMLA, but the federal government and some states as well have recognized that this was a legitimate reason to be away from work.

Karen Batson:

So are there specific eligibility considerations we have to think through with, with this change?

Annie Jantz:

So, and Trish, I'll take this one if we want to start out talking about it because I think it's really interesting. One of the things that they've changed when they rolled this out, the eligibility is different. So under just the standard family medical leave act under FMLA , um, the employee has, you know, a lot of criteria in order to get into or be eligible for that benefit. They have to be employed for a year with the employer. They have so many hours they have to have worked with the, the Coronavirus response act, the employee, depending on the programs. So for the expanded FMLA, they only have to work for the employer for 30 days. So you could have an employee who's eligible for that piece of the FMLA, the new leave reason , who would not normally be eligible for FMLA or all other reasons. Um, so I think it's interesting that they've done that and I think it probably makes it a little more complicated for the employer and you know, to keep track of all of that. And then with the sick pay that they provide the emergency sick pay leave, that one does not have that same 30 day. It appears to be more, a little bit even broader than that.

Karen Batson:

So let me, let me ask this question. Is there any differences between a full time or part time employees when it comes to eligibility?

Annie Jantz:

No. From my understanding of the law and what I've read and looked at, and Trish, again I'd ask if you have anything to add here, but I'm part time and full time employees are eligible for the benefit. There is no difference. The only difference I would say because there's a paid component, collating, the amount of benefits that are be paid is going to be based on how much you work. Um , but other than that, all employees are eligible for this benefit.

Trish Zuniga:

Yup . So any is completely right about that. So full time and part time employees are both counted. They are both eligible. The only time that this matters is going to be the number of hours that they work each week will affect their amount of pay. And so what is their entitlement is going to be what is affected .

Karen Batson:

So I know this really applies to employers under 500 employees. So how does the, how does this relate to employers with more than 500?

Annie Jantz:

though ? It doesn't apply to them? Um , and I know that's been a big question and some employers that have more than 500 want to offer a similar benefit, which they can, but they're not obligated to. Um, and so I think that's something they have to really carefully way. But for an employer that has more than 500 employees, they are not subject to this law. And so they're not required to offer this expanded leave to their employees. Um , or the, the sick leave component of, of the program. There are some caveats, you know, and Trish if you to provide a little bit more detail on this, but calculating or determining if you have less than 500 hundred employees, it seems like it should be pretty simple, but there are a lot of steps to go through for the employer as well , um , on their setup and what their organization looks like. And um, also if there are furloughs or layoffs, shutdowns , all of that comes into play and want to expand a little bit on that cause that can get more complicated.

Trish Zuniga:

Sure. Yeah. There are several categories of employees that you should be counting. You as an employer should be counting towards that 500 or more employees threshold and you should be counting your employees on leave. You should be counting your temporary employees who are jointly employed by you and another employer. You should also be counting day laborers supplied by a temporary agency who you should not be counting are independent contractors. They're not considered employees for purposes of the 500 employee threshold. And then you don't count employees who have been laid off or furloughed and have not subsequently been re-employed . So this is the part that gets tricky because as companies are laying off or furloughing their employees, they may have been above the 500 employee threshold at first, but because these employees are no longer counted, then they may fall under that threshold if they furlough or layoff enough employees.

Annie Jantz:

Yeah, and that that definitely has been a big topic of conversation and I think probably challenging for some employers as well, considering just what's going on overall in our country with the number of businesses that are impacted today. And you know, so trying to track how many employees you have at any given time and whether that law applies to you because you know, part of what this does is looks at the number of employees that you have at the time the claims are filed. So it just becomes a little bit more complicated and keeping track of if you're falling below that threshold and does this apply to you. So yeah, it's , that's definitely a big topic of conversation.

Karen Batson:

So let's, let's dive into some other specific questions. We know that we're getting, getting, get into the details a little bit more. Um, one question or seeing it is I think kind of a basic one, but we'll see what your answer is. Is the paid leave at the employer's expense?

Annie Jantz:

Yes it is. The employer is responsible for paying the wages that are part of the , the benefits. So there's two components, right? One is if we're looking at the expanded FMLA leave reason, there's tracking that leave, you know, making sure that they're accounting for all of the time that's available. And then the other component is a paid piece and that is paid by the employer during that leave. So they run concurrently there , you know, it's one in the same benefit, but they're really two pieces of it. Um , and the employer is responsible for paying the benefits.

Trish Zuniga:

Yeah. And I'll just add that it also depends on the leave reason that the employee is out for. So it's not a straightforward , they're entitled to their regular rate of pay at 100%. So it could be at 100% or two thirds of their rate of pay depending on the reason that they're out for.

Karen Batson:

I know there's a maximum. What if, what if the employer wants to pay more than the maximum tied to any of the leave reasons that might come with this?

Annie Jantz:

There's no reason the employer can't pay a higher benefit. Again, I think they would want to weigh all of their options, make sure they understand how that may impact their organization overall. But there's, you know, if they, if the employee is eligible for just the 66 and two thirds and they wanted to make them whole and provide 100%, there's nothing that stops them from doing that. Again, it's just making sure they understand everything that's in the law, what that means to the organization.

Karen Batson:

Now, we talked in the beginning when we kind of set this up that there are different leave reasons that have come with this. So, and there's been, I think a lot of questions around this in particular. So one question is does this cover a disabled child over 18 whose place of care is closed due to COVID-19.

Trish Zuniga:

So just to start we're talking about , uh , two components of FFCRA leave here and one is emergency paidsick leave, and one is expanded FMLA. Expanded FMLA is only available when the employee is unable to work, when there is a need for leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19. So let's go into that E FMLA or expanded FMLA and let's see if that covers a disabled child over 18 whose place of care is closed. And the short answer is yes it does. Even if the law itself doesn't call it out. And it goes back to looking at the definitions. Thus , the definition of son or daughter cover a child over the age of 18 so even in standard FMLA it does. So under standard FMLA you can take leave to take care of your adult son or daughter if they are disabled with a physical or mental disability. So what that means is when the FMLA was expanded to have a paid component, an employee can take leave for their disabled child over 18.

Karen Batson:

Okay. So does care of a child include children who have ADHD or autism and they must assist them with homeschooling due to the school closures then? Kind of thinking back to your definition.

Annie Jantz:

So I guess what I would say on this question, and I think it's a really good question. It may, because the law does cover one. If you have a child that's in school, and this is for the expanded FMLA, you have the child that's in school, this school is closed because of COVID-19 and now they're at home and you have to care for that child. Maybe help them with homeschooling , um, or their place of care as closed where they'd normally would go that maybe is, you know, different type of facility. And I think the , you know, either way you, if you have to help them and they , they need additional care, you're covered under this leave reason. Adding in if they have ADHD or autism, which may be considered a disability or something that is an impairment that requires additional care , um , would fall under that. So definitely a child under the age of 18 is, is part of the consideration for any school closure or place of care. Over 18, I think the definition of a disabled child would fall into place.

Karen Batson:

So if an employee cannot work because of school closures, do they receive the additional 10 weeks under the expanded FMLA and if so, are employers required to keep health benefits for the additional 10 weeks on top of the 12 weeks?

Trish Zuniga:

So that is a loaded question and let's break it down. So we get this question a lot and I want to focus on that term, additional 10 weeks under expanded FMLA and let's, let's first address that misconception that a expanded FMLA is on top of your standard FMLA requirement . So it is not , um, expanded FMLA draws from the same bucket as standard FMLA. So you only have your 12 week entitlement for both your standard FMLA leave reasons and your expanded FMLA so you don't get an additional 10 weeks under expanded FMLA on top of the 12 weeks of standard FMLA. So that's part one. And then part two is the question around maintenance of health benefits. Uh, so that's, that's a question that can be answered under expanded FMLA similar to standard FMLA . And the question there is, are employers required to keep health benefits during expanded FMLA? And the answer is yes. If the employer provides health coverage that you've elected and then you went on leave , um, they're supposed to maintain it at the same terms as if you continued to work. So if they require you to pay contributions , um , to that , um , health plan, then you have to continue making those contributions. Even if you're out.

Annie Jantz:

So something I just wanted to clarify Trish and um , just like to get your thoughts on this too, because I do see this question come up quite a bit and asking about the, you know, the time, do you get 12 weeks in addition to the 12 weeks under FMLA. But it's also this perception that it's 10 weeks under the expanded FMLA and I think that's because of the emergency sick leave, right? So the emergency sick leave is two weeks of pay and that is for different leave reasons is for the quarantine isolation, all of those components. And then you have the expanded FMLA, which is a new leave reason under the FMLA. And that's for the school closure. But you can also for those in, it's 12 weeks under the expanded FMLA that you receive. But for the first two weeks of that leave reason, it's considered unpaid. But you can use the emergency sick leave pay to make up that time. Right? So it's still, there's separate programs, but there is the ability to use the emergency sick leave in the beginning of the expanded FMLA, which becomes a little , I think, confusing to people because they're crossing over when they're really very separate. Like the emergency sick leave is not part of your FMLA entitlement. Like that does not reduce your 12 weeks of leave that you have under the entire program.

Trish Zuniga:

Yeah, it's very confusing. And this is why in our webinars we like to use a visual representation of all these leaves layered together. Just so you can see which program is running with what, when and usually concurrently,

Annie Jantz:

Right, right. And the expanded FMLA , you know, during those first few weeks, if you don't have that emergency sick leave to use, that employee can use PTO sick leave, they can use another method or you know, benefit that's offered by the employer . So that's some of that difference too. So I think it's always good to keep them separate to make sure that we're looking at them as two distinct programs. And , um , I think that helps, you know, to, to think about them that way. So they're not overlapping.

Karen Batson:

So seems like we get a lot of questions in regards to supporting childcare, school closures when it comes to leave reasons. But can we talk a little bit about what it means to, or what it , what the definition is of just being unable to work regarding those leaves reasons under the expanded FMLA? Yeah, I think that's a really good question too, because you know it , it talks a lot about being unable to work or telework. So the work has to be available too . And that's why if you are, you know , laid off or you're on a furlough, you're not eligible for this leave because there's not work available. So there has to be work available and you know, whether it's in the office or at home. And then at that point you have to be unable to work because you have a child who's at home because of the school closure or daycare or place of care. And it's related to the COBIT 19. So the schools, all of the schools pretty much are out of, you know , the, they're on remote learning at this point or daycares have shut down because of, you know , the Coronavirus. And so the parents that are at home, and even if you're teleworking but you're not able to maybe work the entire day because you have to take care of a small child or you have to help with homeschooling activities for your child. That is a reason why you could take this leave. So, you know, and Trish I would say if you have anything to expand on, you know, the their inability, excuse me to the work, but it really is, you have to have work available and then you're just not able to do that because of those responsibilities.

Trish Zuniga:

I have nothing to add. Annie, explained that perfectly.

Karen Batson:

Here's a curiosity question from my end as we're , we're approaching summer and I talked to a lot of my parent friends that are waiting to hear if summer camps are closed and those sort of activities for um , their children. Is that been talked about or asked about at all in regards to a leave reason? Does that connect with the schooling?

Annie Jantz:

I haven't heard that yet. I'm sure it'll come up though. And I know a lot of parents aren't thinking about it. So I've heard it from, from other people, employees here at Lincoln that we've talked about some of this . Um, but I think because the law indicates that it's a school closure or place of care closure that you are still believe is available, it won't make a difference. So in the summer, if your kids would normally go somewhere during the day while you're at work and they can't, then you would be covered under this law. So it is going to be interesting to see what happens over the summer. And I know there's been a lot of discussion about when things are going to open. I know even in my community, they've already said summer school's going to be online. My daughter works for an afterschool program. They still have not called them back to work. So it's hard to stay when things will open or what will happen. And then again in the fall, what they do with schools and what that impact will be. So, but I would say that that it doesn't change anything. I still think they're subject to this leave. They can take the leave if they're not able to send their kid to the normal place that they would during the day while they work.

Karen Batson:

And this law , I don't think we talked about when we kind of summarize is isn't in effect till the end of this year, Right? So those leave for reasons can apply up December 31st if I'm remembering correctly?

Annie Jantz:

Yes, that's correct. Until 12/31, unless they would expand it, which I don't, I don't think they would unless we continue to have issues into next year.

Karen Batson:

Right. So another question that kind of came up is can an employee take intermittent leave in regards to this expanded FMLA?

Annie Jantz:

Yeah. So this is another good question. And this is one we've been talking about quite a bit. The , you can, you can take intermittent leave and the only, I don't, I wouldn't say it's a big difference so you can take intermittent leave under FMLA anyway. Um, but the, the law does specifically say as long as the employer and the employee agree on the time, right. Like the intermittent leave. Um, and I , so I think that there is built into this really looking for a lot of flexibility. So again, looking at like work from home and the employee maybe, you know, work different hours, can they work later in the evening or earlier in the morning or you know, maybe take a break, maybe work seven in the morning and some in the evening and then in the middle there, take care of their kids or homeschool whatever they need to do. Um, so yes, you definitely can have intermittent leave. Um, it's , I would say not really any different than just standard FMLA. It's just, I think people are trying to be creative, honestly, to figure out how to continue to work while watching their kids at home.

Karen Batson:

If an employee does not reach the standard FMLA requirements, but does meet the new expanded family and medical leave or EFML eligibility. If they use, if they use EFML, would that count against future standard FMLA if they become eligible in the same FMLA year basis? That's a loaded question. I still had to read that one right off the paper.

Annie Jantz:

It is , and I'll let Trish take that one.

Trish Zuniga:

Sure, so it goes back to what I said earlier about standard FMLA entitlement and expanded FMLA entitlement being drawn from the same bucket. So if you've already used your standard FMLA entitlement, you can only use what's remaining for your expanded FMLA and vice versa. So if you've used expanded FMLA, you just get the remainder for your standard FMLA. But the great news about this is that your use of the FMLA entitlement does not affect your entitlement to expanded paid sick leave. So even if earlier in the year, you've already used all 12 weeks of your standard FMLA entitlement before expanded FMLA came into play on April one then on April one you wouldn't be left with nothing. You could still take your two weeks of EFML.

Annie Jantz:

I think that's a great point, Trish. I think that's a good thing to call out.

Karen Batson:

Are employers allowed to ask for medical certification and a return to work notice for COVID-19 related leaves?

Annie Jantz:

That's a really good question too. And Trish , I'll definitely want you to weigh in on this piece for certification of leave. Um , so under the school closure, you know, this has been another topic that we've had a lot of conversation about. There is no medical documentation right to ask for because it's a school closure related to a public emergency. Um, I think very easy to validate that they're , you know, closed schools or even some of the daycares depending on where your child is during the day. Um, so there's not really a lot of information. However, there may be some information the employer needs to keep on record for themselves to validate the leave and the payment that they've made and the reason for the payment. So I think there are some things for themselves that they need to keep in their records. And then I think it's reasonable to ask the employee, you know, when they would expect to be able to work again. Like if you have a child at home and let's say maybe you know, you need to do the homeschooling for four weeks and then your husband's able to take over that or someone else is able to step in and help. Um, you know, so maybe just asking for that timeframe, but you know, in terms of what specifically is needed or even under the sick leave , what's required. Trish, I'd ask you to weigh in on that and your thoughts.

Trish Zuniga:

Sure. And it's, it's interesting to note that when the DOL first issued these guidelines, they had this list of what can be acceptable documentation of an employee's need for leave. And they were cognizant of the fact that you may not necessarily get a doctor's certification like what is needed for standard FMLA or you could even submit something like a newspaper clipping or an email from your school that it's going to be closed. And then the regulations came out and they actually revised that threshold to be lower. And now employers can accept even a statement from the employee that they are going to be needing to take EFML leave because their child's school is closed . So even as simple as that, but like Annie said, the documentation requirement for taking the leave and the documentation requirement for claiming a tax credit under FFCRA, those are two different things and employers need to be cognizant of what is required under both.

Karen Batson:

So I was going back over my notes for this show and one of the things that came up on someone who's been out because of these leave reasons, is there any restrictions of what the employer could ask for with an employee returning back from leave? It's okay if there's no answer. I was just more curious.

Annie Jantz:

No, I mean, I think it's a good question. I was just thinking, I'm not sure that there is, I don't think on the school closure, I can't imagine that there would be, you know, anything other than just being able to return on the sick leave. He's, I don't, I don't really know. I think it's a good, good question though. And I think some of what, and Trish, I guess I'd like to get your thoughts here and as we see companies that are maybe changing or bringing people back into the workplace and they're identifying their own safety precautions, I don't know if there'd be something that they would look at to say, okay, you've been in quarantine or you had symptoms and so you , you know , put yourself in self quarantine or isolation. Are they going to require something for that person to come back? I don't know. And if are they able to do that, you know, asking for if they've been tested or you know, if they had the virus. I guess those are things I just don't know. And I don't know that those have been discussed.

Trish Zuniga:

I think to answer that question, we're going to have to take a look at not just what the FFCRA and what the standard FMLA laws and regulations require, but also what is allowable under privacy laws and under related laws like the Americans with disabilities act. So, so I, I think I can only answer that question with a framework of how to answer. And it's for employers to consult with their internal counsel on their specific needs as they start having their employees return back to their work sites.

Karen Batson:

So maybe a future topic for us on the show . Dive in as we know more info.

Annie Jantz:

Yeah. Especially as you start to see people. And I know that some companies are putting in place different protocols for people to come into the office. So I think it might be an interesting topic.

Karen Batson:

So looking kind of into maybe some future state elements, do you think , uh , changes in company policies will impact longterm company provided leave offerings or just be the short term?

Annie Jantz:

So I think this is a really good question too. I think it's, it's something that I have thought a lot about, you know, looking at what's kind of happening now and I think that there's no way to tell for sure . It's , I'm not sure that's a great answer, but from my perspective and I guess what my , my general thoughts is that it could change some things. Yes. Um , I think there are companies that may add an additional component to their leave, which would be for an emergency, like a public emergency. Um, I think that's quite possible and honestly it's probably not a bad idea and I don't think anybody saw this really as something that we would be dealing with in 2020 and that it would be the broad. And so I think that the coming out of this, I think a lot of things will change, you know, the way that we view, you know, just our own safety and health and how we pay attention to things. So I could definitely see this starting to shape a change in how a company or you know, how they operate, how they look at their policies, how they look at their emergency leave for employees, their telework, all of those things. Um, I also think that it's possible it could shape some of what happens with FMLA, date leaves. I mean we're seeing that at the state level too . A lot of States are incorporating temporary orders for you know, the Coronavirus, but then, you know, New Jersey has added , um, a leave reason, which doesn't look like it has a termination date for the program and it's just adding some additional public emergency leaves. So I definitely think that it's something to watch. I definitely think that the country will change a little bit because of what's happened. And I think that includes looking at how we support employees. So my last question for you , um, if you could pick one of the most important things that you said in today's conversation , um, to relay back to listeners, what would that be? Maybe an answer from each of you. Yeah, I think I can start. That's fine. I think for me, when I look at what's going on and you know, talking to various people, the questions that we're getting, I think it's really the flexibility. So it's really trying to figure out how to make this work for everyone, for the employer and for the employee. And so that working from home or working in the office and being able to be flexible in what that looks like right now. And , and I think that's probably one of one of the most important pieces that everyone has to have in mind. So that includes the employee understanding. Employers have never been through this either and they're trying to figure out what to do to help everyone get back to work or stay at work at home and, and then make that work in the environment with small children. Um , and homeschooling and, or even having, you know, a lot of people are caregivers for somebody in their home who might be, you know, their spouse or parent a child and they may not have the same support system they had before this. So I just think there's a lot of flexibility going on and I think that's a really crucial and important piece right now.

Karen Batson:

How about you Trish?

Trish Zuniga:

As for me, from a compliance perspective, I honestly can't pick just the one answer about the FFCRA. That would be key for people to know and to remember. So what I'll just say is this , uh , the DOL has a great website and some great resources to help people with their FFCRA questions. It seems like every week they add a whole bunch of questions , uh , to their FAQ document. And so far it's been a great resource because it really gets into those nuances of the FFCRA that , uh , even a lay person could understand. So these are questions that employees and not HR benefits professionals or compliance resources have. So it's questions of what would affect the, you know , rank and file employee. And so I would just recommend this DOL resource and I hope that this is something that we can provide in the links and description of this podcast.

Karen Batson:

Yeah, we'll definitely include that link in the description for this episode. Thank you both so much. This is a good conversation. Hopefully we've provided some good answers to folks listening.

Annie Jantz:

This was great. Thanks.

Trish Zuniga:

Thank you.

Karen Batson:

To everyone listening, thank you for joining us. We will continue to cover topics that help employers and their employees navigate through this new environment. So be sure to subscribe to Lincoln Absence Advisor on Apple, Spotify, or wherever you get your podcasts.

Disclosure:

Lincoln Financial Group is the marketing name for Lincoln National corporation and its affiliates, the Lincoln National Life Insurance Company, Fort Wayne, Indiana, Lincoln Life and Annuity Company of New York, Syracuse, New York, and Lincoln Life Insurance Company of Boston, Dover. New Hampshire affiliates are separately responsible for their own financial and contractual obligations.