In this episode, Waller’s Mark Peters talks with employment attorney Kierstin Jodway about two of the major federal stimulus packages related to the coronavirus and what it means for businesses.
In this episode, Waller’s Mark Peters talks with employment attorney Kierstin Jodway about two of the major federal stimulus packages related to the coronavirus and what it means for businesses.
spk_0: 0:05
welcome to point by point conversations, interviews and legal commentary for today's business professionals. Brought to you by Waller. Congress responds in this episode. Waller's Mark Peters talks with Labor Attorney Kiersten Job way About two of the major federal stimulus package is related to the Corona virus and what it means for businesses. Thanks for being with us today. One of the topics that I wanted to cover today. WAAS. The Families First Act that was passed and signed into law last week. And, of course, that act provides for an expansion of the Family Medical Leave Act as what as some additional paid sick leave benefits. One of the fundamental questions that folks have is my cover. How does an employer know if it is cover or not under the Families First Act?
spk_1: 1:05
Thank you, Mark. Yep, that's that's the first question that companies have to look at and so t fall Within the Families First Act, a company has to have fewer than 500 employees When counting employees. The employer should count part time, full time temporary employees and even day laborers so independent contractors wouldn't be included, but those other categories would be included. There is a potential exemption, and it applies for employers with fewer than 50 employees. Um, if providing the leave would jeopardize the company going forward. From a financial perspective on that
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point, how does the company know? Or how would a company document? How would a company let the Department of Labor, which is the federal agency responsible for enforcing this act, that they believe they fall within that 50 employees exemption?
spk_1: 2:10
So if a if a company has fewer than 50 employees and they're looking at their books and think that they just cannot continue to run the organization and provide the leave under the act, and they're gonna want to document that? But at this point, based on the information we have from the Department of Labor, which is in charge of enforcing the Families First Act, they've asked that employers just document that and the reasons why they think they fall within the exception but not provide any information quite yet to the deal. Well
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kissed in the act was passed by Congress. Now, a little over a week ago, about a week ago, when does the act become effective and if on employer had provided the event benefits like those set forth were required by the act prior to the effective date. Do they have to do it again after the act becomes effective?
spk_1: 3:13
So the answer to your first question is April 1st 2020. That's when the act takes effect, originally in the text of the act that said it would take effect no later than April 2nd. But we now know, based on guidance we received from the Department of Labor that it takes effect April 1st. Um, for your second question, the answer is yes. Um, anything that an employer is doing right now is not gonna count towards the requirements under the Families First Act.
spk_0: 3:44
So it's not retroactive. In other words,
spk_1: 3:46
that's exactly right.
spk_0: 3:48
All right, so Eman employer and I've got fewer than 500 but more than 50 employees. What benefits are my employees entitled to now that are different from the benefits prior to the enactment in the effective date of the AC? In other words, what am I gonna be on the hook for paying that I wasn't before?
spk_1: 4:12
There are two separate provisions within the families. First act first you have the emergency paid sick Leave Act. What that provides is 80 hours, up to 80 hours of emergency paid sick leave to an employee who is not able to come to work. Um, because of some cove it 19 related reason. For example, some of the um qualifying reasons would be if they're under self quarantine or say, at home shelter in place, order at either federal, state or local level. Another reason would be if they have been diagnosed with covert 19 or if the employee thinks they have Cove in 19 and is seeking a medical diagnosis. Another reason would be if they have a child and their child is at home because the school is closed and so they can't come to work or tell it work. If they have, if they qualify under one of those listed reasons than the employees can get up to 80 hours of paid leave. The second part of the Families First Act is an expansion of the Family and Medical Leave Act, and what it does is provide up to 10 additional weeks so 12 weeks in total for employees, and that those additional 10 weeks of this available for employees who have a child. He's unable to go to school and therefore the employees prevented from working or teleworking.
spk_0: 5:44
So let me ask you a question on one of the points you mentioned. I want to make sure I'm clear about this. If there's an executive order that requires employees to stay away from work, those folks are not entitled ably correct.
spk_1: 5:59
Not necessarily. The way that the act is written is it would have to be an employee cannot work or tell a work in order to be entitled to the leaves.
spk_0: 6:09
Houston If I'm a covered employer and one of my employees is eligible for leave under the families first, how do I know how much I'm supposed to pay?
spk_1: 6:23
Yeah, so it it depends. There's different. There's different pay requirements for different types of leaves. With the paid sick leave, there are six reasons for which an employee could take that. Leave the 1st 3 If they fall within the 1st 3 then they can get their full earnings with a cap of $511 per day. If they fall within the 4th 5th and sixth reason, then they get 2/3 of the regular rate with a cap of $200 per day. Now, under the expansion of the Family and Medical Leave Act, employees taking leave under that provision get 2/3 the regular rate of pay with a cap of $200 per day.
spk_0: 7:05
That sounds complicated to May. Let me ask you a question that might even provide more complications. Under the Family Medical Leave Act, employees can take leave intermittently. Can they take intermittent leave under the Families First Act as well?
spk_1: 7:24
We didn't know the answer that question until today. The deal? Well, the Department of Labor just expanded on there frequently asked questions resource on their website. Basically, what they said is yes, under certain circumstances, cause you can imagine you wouldn't want someone who's taking leave because they think they have Cove in 19 coming toe work on an intermittent basis. But under the expansion of the Family and Medical Leave Act, you have an employee who's out because they're trying to care for their child. The deal has said yes, an employee could take that leave intermittently. For example, they could work Monday, Wednesday, Friday, but asked to take that leave on Tuesday Thursday.
spk_0: 8:06
What if somebody has already taken their 12 weeks of the under the Family Medical Leave Act. Do they get additional leave under the families first?
spk_1: 8:15
That is a question that we have not received an answer to buy. The deal well, works. We're hoping to get some regulations God that expand and cover that next week.
spk_0: 8:26
It sounds like an expensive proposition for employers. Does the Families First Act provided any type of relief from the government for the payments made or required to be made under the families first? That
spk_1: 8:40
yes, the government has recognized that this is going be expensive for employers, potentially and so what it has said. The deal well, it's sad is that employers can taken immediate tax offset. In other words, whenever they withhold that Social Security tax from wages instead of depositing it with the I RS, the employer can use that money and hold onto it to offset against the leave provided him with the Families First Act.
spk_0: 9:08
How do employees no about the families first act other than by reading it in the news and on the Internet is they're eating requirement that companies post a notice
spk_1: 9:21
There is. The deal has posted a model poster, and employers are required to post in a conspicuous location on site. Now, given that a large part of the workforce nationwide is working remotely, the deal well has also asked that employers, either male or female, that poster to the employees.
spk_0: 9:43
What happens if I'm a business? And I decide? Gosh, I don't think I can afford. And I've already furloughed or laid off Some employees prior to the effective date of the act are those employees have either been furloughed or laid off on a temporary basis. Are they eligible for benefits under the act as well?
spk_1: 10:08
No. And that was directly addressed today by the Deal l and their expanded f ake you want. So the act does not apply retroactively. So anyone who's laid off between now and April 1st is not going to be eligible for the leave up. Then the deal when, as Faras say, if an employer closes, its work site will reduce his hours down to zero or even furloughs people after April 1st, those employees air not gonna be eligible for the lead
spk_0: 10:36
change years a little bit because, as I understand, under the Families First Act There are potential exemptions, not only for small businesses, but businesses are allowed to designate certain employees as health care providers or emergency responders. Is there any definition yet for either of those terms?
spk_1: 11:02
Yes, so the act incorporates the F. M. L. A's definition of health care provider, which is going to include podiatrist, dentist, clinical psychologists, optometrist, chiropractors, nurse practitioners, clinical social workers and other health care providers.
spk_0: 11:22
So under the definitions, it's a pretty narrow scope of employees. At this point, it doesn't include, for example, or not. Include. For example, under the definition nurses for other people who are on the front lines of this evidence. Is there some move to trying to expand that definition?
spk_1: 11:46
Yes, there is.
spk_0: 11:47
And do I understand correctly that there have been a number of trade organizations that have been sending requests to the Department of Labor and in particular, secretaries, Scalia asking for that interpretation to be expanded?
spk_1: 12:05
Yep, that's what we're seeing, and we expect to have some updated information on that topic in the Cummings
spk_0: 12:12
Kirsten, Uh, just a few minutes ago, President Trump signed The Cares Act bill into law. Is there any interaction? Should employers be thinking about how the cares act interacts with the families first?
spk_1: 12:30
Sure, so I think what the government has realized is with the passage of the Families First Act, which was end at helping employees who are struggling to goto work because of coded 19. What happened? As a result, his employers were looking at their books and considering making large layoffs in order to say profitable and survive this period of time. What the cares Act does is provide some really attractive loan options for small businesses. It applies to employers with fewer than 500 employees, just like the Families First Act. Um, and employers can use these loans to cover payroll costs for the next couple of months, and a large portion of those loans, if an employer retains its employees, will be forgiven.
spk_0: 13:26
Justin, I really appreciate you taking the time to talk with us today and look forward to our next uh, thanks, Mark. And thanks for having me. Thank you for listening to this episode of point by point Brought to you by Waller. Visit the News and inside section of our website toe listen to rep isso ds subscribe with podcast, find show notes, and okay,