Q: How does FFCRA sick and family medical leave work for temp and backup care workers?
A: All employees (full time, part time, and seasonal) are eligible for paid leave under FFCRA for leave taken between April 1, 2020 and December 31, 2020. Paid Sick leave is to be paid for up to 80 hours at the employee’s regular rate. Part time employees are eligible for paid sick leave covering the average number of hours they work in a two week period. A 6-month average can be used to calculate the number of hours for which part time employees are eligible.
Q: Do small business loans and tax credits cover my payroll costs?
A: FFCRA includes a refundable tax credit to completely offset an employer’s cost of providing mandatory paid sick leave and paid family leave. FFCRA is intended to minimize the cash flow impact on employers so they can keep employees rather than reduce staff through furloughs or layoffs. We are awaiting IRS guidance on how employers can get reimbursed as quickly as possible, but employers should feel confident that they will be able to claim the credit (thus reducing their tax payments) at the time they file and pay their federal tax liabilities.
The Senate has passed the CARES Act, which includes forgivable loans to small businesses so long as the money is used for qualified expenses such as payroll. This bill is pending a vote in the House on Friday, March 27th and will go to the President for signature if passed.
Q: What is an essential worker, and are nannies considered essential workers?
A: Essential workers are those working in Critical Infrastructure Sectors, as designated by the Department of Homeland Security, or otherwise deemed essential by Federal, State, or Local government orders. Nannies are not listed explicitly as essential workers, however household employers may have jobs that are deemed essential, in which case childcare provided by the nanny may become essential if no alternative is available. If a nanny is willing and able to work in this situation, she/he should do so. They key here is that the family and nanny should have an open discussion about what is best in their situation, and both sides should remember that if the nanny is unable to work because of their own need to care for a child or loved one, they must be granted the required paid leave under FFCRA.
Q: If nannies opt not to work will they get paid sick leave (before and after 4/1)?
A: Payment for leave taken prior to April 1, 2020 is completely at the discretion of the employer. FFCRA only applies to leave taken after April 1st, and all active employees as of that date are eligible for required benefits. An employee who “opts” not to work for any reason other than those listed below is not eligible for the paid leave provided under FFCRA:
Q: What is the difference between a Furlough, a Lay Off, and a Reduction in Force?
A: Under a furlough, an employee’s hours and pay are reduced, in part or in full. The employee retains their position with the company and is still eligible to receive benefits. When furloughed, an employee can apply for unemployment benefits to provide income, meant to provide for their needs until they return to work.
When an employee is laid off, the employee is temporarily separated from payroll, with the understanding that they will be recalled when work becomes available. Employees may apply for unemployment while laid off, and the employer may offer to maintain their medical benefits for some period of time as an incentive to be available for recall.
A Reduction in Force occurs when a position is eliminated with no intent to refill it.
Q: Do I need to decide about furloughs, layoffs, and reductions in force prior to 4/1, since once an employee requests the FFCRA leave I can’t terminate them for asking? What if I need to furlough them half way through the sick leave?
A: We never want to encourage layoffs, and the FFCRA is intended to reduce the need for them by offsetting an employer’s cost of retaining employees. We urge you to first explore the relief Congress is providing and try to find a way to retain your employees.
You cannot terminate an employee who requests paid leave under FFCRA and replace them with another employee. If the work no longer exists and a position can be eliminated, an employer can opt for furloughs, layoffs, or a reduction in force. You should always thoroughly document your reasons for terminating an employee and consider consulting your attorney before doing so.
Q: Is there an exemption for employers with fewer than 50 employees?
A: FFCRA offers an exemption from the leave requirements relating to school closings or child care unavailability for those with fewer than 50 employees if the requirements would jeopardize the ability of the business to continue. The Treasury Department has not issued any additional guidance on this provision, but the government offer of relief provided by the FFCRA and the Cares Act is meant to eliminate the threat to the viability of your business.
Q: If I furlough or lay off our whole temp department prior to 4/1, does that mean I am off the hook for FFCRA? Do I have to tell them how long they will be out of work?
A: You do not have to offer paid leave to employees who are not currently employed. Furloughed or laid off employees would be eligible to apply for unemployment benefits. You do not have to give furloughed or laid off employees a date that the furlough or lay off will end, but you cannot prohibit your employees from searching for other work. By furloughing or laying off your employees rather than providing the paid leave required by FFCRA, you risk a staffing challenge when things return to normal.
Q: Can I furlough or lay off only part of our temps, and keep a few on?
A: Yes, you can reduce your workforce temporarily by furloughing or laying off some employees but not all.
Q: What happens if I send out temps and they get in trouble or they get sick?
A: HWS cannot comment on the risk you are taking and you should consult an attorney to determine your risk and comfort with it.
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