Notice & Documentation Requirements Under the New Paid Sick and FMLA Leave Law

Proper Timing for Requesting Leave

1. Employees name
2. Date of leave request
3. Qualifying reason, and
4. Oral or written statement that the employee is unable to work due to qualifying reason

What documentation must employee provide to prove need for leave?  

• Employee subject to a federal, state or local quarantine or isolation order related to COVID-19: the name of the governmental entity that issued the Order
• A health care provider advises an employee to self-quarantine: the name of the health care provider who advised the employee to self-quarantine.
• Employee caring for an individual subject to a quarantine order or been advised by a health care provider to self-quarantine: either the name of the governmental entity that issued the Order to which the individual being cared for is subject, OR, the name of the health care provider who advised the self-quarantine.

• Employee must provide the name of the child, name of the school, place of care or child care provider that has become unavailable (keep in mind this could be family or a friend), and a representation that “no other suitable person will be caring for the child during the period the employee is taking leave

Steps to Reopening Your Workplace

Besides continuing to follow recommendations issued by the state and local health departments, you can consider these 5 steps: 

1. Preliminary Questions Before Reopening

According to the CDC guidance, you should consider three questions when deciding whether to reopen:

• Are you in a community no longer requiring significant mitigation?
• Will you be able to limit non-essential employees to those from the local geographic area?
• Do you have protective measures for employees at higher risk (e.g. teleworking, tasks that minimize contact)?

CDC states you should only consider reopening if you can answer “yes” to all three questions.

2. Take Recommended Safety Actions

Once you feel comfortable that your organization can satisfy the three preliminary questions, you should next adopt the CDC’s recommended safety actions. They include:

• Promoting healthy hygiene practices;
• Intensifying cleaning, disinfection
• Practice Social Distancing (e.g., small static groups, no large events);
• Canceling non-essential travel, and encouraging alternative commuting and telework;
• Spacing out seating (more than six feet) and staggering gathering times;
• Restricting use of any shared items (phones, tools, etc) and spaces; and
• Training all staff in the above safety actions

3. Implement Safeguards for Ongoing Monitoring Of Employees

Next, before reopening, you should implement safeguards for the ongoing monitoring of employees. They include:

• Encouraging employees who are sick to stay home;
• Establishing routine, daily employee health checks;
• Monitoring absenteeism and having flexible time off policies;
• Having an action plan if a staff member gets COVID-19; (we’ll have a blast next week to address this)
• Creating and testing emergency communication channels for employees; and
• Establishing communication with state and local health authorities.

4. Prepare Your Physical Workspace For Reopening

The final step before you reopen your doors involves preparing your location for the reentry of workers, customers, guests, and other visitors. The CDC has released guidance for cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes. Review this guidance when implementing cleaning procedures at your facilities after shelter-in-place orders are lifted. 

5. Maintain Vigilance

OSHA Provides Recordkeeping Guidance To Employers For COVID-19 Cases

The Department of Labor’s Occupational Safety and Health Administration issued guidance for enforcing OSHA’s recordkeeping requirements for COVID-19 cases. OSHA recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.

When Does Your Recordkeeping Obligation Kick In?

According to the guidance, COVID-19 is a recordable illness, and must be recorded on an employer’s OSHA 300 log if:

1. The case is a confirmed case of COVID-19 (meaning an individual has at least one respiratory specimen that tests positive for SARS-CoV-2, the virus that causes COVID-19);
2. The case is work-related (as defined by 29 CFR § 1904.5); and
3. The case involves one or more of the general recording criteria as outlined by OSHA: if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond “first aid,” or loss of consciousness (OSHA provides a specific and complete definition of “first aid” in 29 CFR § 1904.7(b)(5)(ii)).

Limited Enforcement Waiver

Recognizing the difficulty in determining whether COVID-19 was contracted while on the job, OSHA will not enforce its recordkeeping requirements that would require employers in areas where there is ongoing community transmission to make work-relatedness determinations for COVID-19 cases, except where:

1. There is objective evidence that a COVID-19 case may be work-related; and
2. The evidence was reasonably available to the employers.

This waiver of enforcement does not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions in areas where there is ongoing community transmission.  These employers must continue to make work-relatedness determinations. 

This new guidance provides employers with one fewer issue to worry about in their response efforts to an employee with a confirmed case of COVID-19. Employers should continue to focus on minimizing the risk of transmission in the workplace.  

IRS Extends the Form 5500 Due Dates for Some Employee Benefit Plans

The Internal Revenue Service has broadened the filing and payment relief provided under prior guidance. IRS Notice 2020-23 postpones, among other relief, the due date for employee benefit plans required to make the Form 5500 series filings due on or after April 1, 2020, and before July 15, 2020.  Plans with original due dates or extended due dates falling within this period now have until July 15, 2020, to file their information reports.

Plan Administrators with original (un-extended) filing due dates falling within this announced 2 ½ month period who need additional time to file may request extensions by filing Form 5558 by July 15, 2020.  However, the extended due date will not be later than what it would have been absent this relief.

The chart below highlights the plans with a plan year-end which may benefit from Notice 2020-23 and have until July 15, 2020, to complete the required filing.

Notice 2020-23 invokes the Rev. Proc. 2018-58 section about Postponements for Federally Declared Disasters, which also states, “whatever postponement of the Form 5500 series filing due date is permitted by the IRS under section 7508A will also be permitted by the Department of Labor and PBGC [Pension Benefit Guaranty Corporation] for similarly situated plan administrators and direct filing entities.”

The PBGC acknowledged this IRS notice in its own Disaster Relief Announcement but reminded filers there are certain actions listed on the PBGC’s Exception List that do not automatically qualify for the relief.  The Exception List comprises actions that the PBGC views as creating a high risk of harm to plan participants.  For those actions, the PBGC will consider relief on a case-by-case basis.  For example, the PBGC filing relief may help those defined benefit plan sponsors recently engaging in significant layoffs who now need to file a PBGC Reportable Event due to a single cause active participant reduction.

IRS Notice 2020-23 also applies to the Form 990 series of filings that apply to tax-exempt trusts described in Internal Revenue Code Section 501(c)(9), referred to as VEBA (voluntary employees’ beneficiary association) trusts, among others, due on or after April 1, 2020, and before July 15, 2020.   The due date for these information reports is extended as well to July 15, 2020.

FFCRA Reasons for Leave

1. Is the employee able to telework?
2. Do we have work for the employee – either in office or remote?

FFCRA Documentation and Record Keeping: What Employers Need to Know

Records Related to Small Employer Exemption

Information Supporting Reasons for Leave

• Leave because of a federal, state, or local quarantine or isolation order related to COVID-19. The employee must supply the employer with the name of the government entity that issued the order.
• Leave because a health care provider advised the employee to quarantine or self-isolate due to concerns related to COVID-19. The employee must supply the employer with the “name of the health care provider who advised” the employee to quarantine or self-isolate due to concerns related to COVID-19. Note that these “concerns” are limited to three COVID-19-related situations:  (1) the employee has COVID-19; (2) the employee may have COVID-19; or (3) the employee is particularly vulnerable to COVID-19. Although the Regulations do not state it is required, employers may want to at least include these situations on their request forms to show that the leave is being requested – and provided – for a covered reason.
• Leave because the employee is caring for an individual who is subject to an order by a federal, state, or local official to quarantine or self-isolate or who has been advised by a health care provider to quarantine or self-isolate due to concerns related to COVID-19. The “individual” to whom the employee is providing care must be an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-isolated. For this type of leave, ‘‘individual’’ does not include persons with whom the employee has no personal relationship. Although not specifically required by the Regulations, this detailed definition implies the need to request information regarding the relationship, and the collection of such information is supported by the IRS FAQs. As with similar leaves for the employee’s own circumstances, the employee must supply the employer with the name of the governmental official or entity that issued the quarantine or isolation order or the name of the health care provider who advised the individual for whom the employee is caring to self-quarantine due to concerns related to COVID-19. If the leave relates to advice from a health care provider, the same limited “concerns” noted above also apply to this form of leave, and employers may want – at a minimum – to include that list on their request forms to show that the leave is being requested for a covered reason.
• Leave because the employee is caring for his/her son or daughter whose school, place of care or childcare provider has been closed, or the childcare provider of such son or daughter is unavailable, for reasons related to COVID-19. An employee must supply the employer with (1) the name of the son or daughter for whom the employee is caring; (2) the name of the school, place of care or childcare provider that has closed or become unavailable; and, (3) a representation that no other suitable person will be caring for the child during the leave.
  • NOTE: The answer to IRS FAQ No.44 notes that, in order to receive a tax credit for the paid sick leave or expanded family and medical leave for this reason, if the child is older than 14 and the leave is during daylight hours, the employee must provide a statement that special circumstances exist requiring the employee to provide care.

What Employers Need to Keep (and for How Long)

1. Documentation to show how the employer determined the amount of emergency paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including “records of work, telework and qualified sick leave and qualified family leave;”
2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
3. Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
4. Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941; and
5. Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.

Employer Step By Step Guide to FFCRA Related Tax Credits for Paid Leave

Documentation For Various Leave Situations

• Documentation to show how you determine the amount of qualified sick and family leave wages you paid to each employee, including records of work, telework, and qualified family leave;
• Documentation to show how you determine the amount of qualified health plan expenses that the employer allocated to wages (see FAQ 31 through 36 on the IRS Guidance entitled “Determining the Amount of Allocable Qualified Health Plan Expenses” for methods to compute this allocation);
• Copies of any completed Forms 7200 Advance of Employer Credits Due to COVID-19 that you submit to the IRS; and
• Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that you submit to the IRS. If you use third-party payers to meet your employment tax obligations, you should retain the records of information you provide them regarding your entitlement to the credit claimed on Form 941.

A. Reason For Leave- Quarantine or Isolation Order

• Employee’s name
• Date(s) the leave is requested
• A statement of the COVID-19 related reason the employee is requesting leave and “written support” for such reason
• A statement that the employee is unable to work or telework due to a COVID-19 related reason; and
• The name of the government entity ordering the quarantine.

B. Reason For Leave- Advised by Doctor to Self-Quarantine

• Employee’s name
• Date(s) the leave is requested
• A statement of the COVID-19 related reason the employee is requesting leave and “written support” for such reason
• A statement that the employee is unable to work or telework due to a COVID-19 related reason; and
• The name of the health care professional advising self-quarantine.

C. Reason For Leave- Has Symptoms and Seeking Medical Advice

• Employee’s name
• Date(s) the leave is requested
• A statement of the COVID-19 related reason the employee is requesting leave and “written support” for such reason; and
• A statement that the employee is unable to work or telework due to a COVID-19 related reason.

D. Reason For Leave- Employee Caring for Person Under Quarantine/Isolation Orders

• Employee’s name
• Name of the person subject to quarantine or advised to self-quarantine
• Relation of the person subject to quarantine or advised to self-quarantine
• Date(s) the leave is requested
• A statement of the COVID-19 related reason the employee is requesting leave and “written support” for such reason
• A statement that the employee is unable to work or telework due to a COVID-19 related reason; and
• The name of the government entity ordering the quarantine or the name of the health care professional advising self-quarantine.

E. Reason For Leave- Caring for Child if School/Daycare is Closed

• Employee’s name
• Name and age of the child/children
• Name of the school that has closed or place of care that is unavailable
• Date(s) the leave is requested
• A statement of the COVID-19 related reason the employee is requesting leave and “written support” for such reason. The “written support” should include:
  • A statement that the employee is unable to work or telework due to a COVID-19 related reason;
  • Representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave; and
• If the child is older than 14 and needs care during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

• Notice of closures or unavailability from a school, place of care, or child care provider;
• A notice of closure or unavailability posted on a government, school, or day care website;
• A notice of closure or unavailability published in a newspaper; and
• A notice of closure or unavailability emailed from an employee or official of the school, place of care, or child care provider.

F. Reason For Leave- Other

• Employee’s name
• Date(s) the leave is requested
• A statement of the COVID-19 related reason the employee is requesting leave and “written support” for such reason; and
• A statement that the employee is unable to work or telework due to a COVID-19 related reason.

Florida Governor Issues Safer At Home Order – What Do Businesses Need To Know?

Florida Governor Ron DeSantis issued a Safer At Home Order for the State of Florida yesterday. It goes into effect just after midnight (at 12:01 am) on the morning of Friday, April 3, 2020, and is set to expire on Thursday, April 30, 2020. The Order limits movement and personal interaction outside of the home to only those necessary to obtain or provide essential services, or to conduct essential activities.

The term “essential services” is defined as and encompasses the list detailed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce. Essential services also include the businesses and activities designated by Florida Executive Order 20-89 and its attachment, which consists of the list propounded by Miami-Dade County Emergency Order 07-20, as amended in multiple orders. Other essential services may be added under the Order and nothing in the Order prohibits individuals from working from home.

Thus, when determining whether your business qualifies as an essential business, you should consult the Department of Homeland Security’s Guidance and Miami-Dade County Emergency Order 07-20 and its amendments. The Order also indicates that a current list of essential services will be maintained on the Florida Department of Health’s website. For purposes of the Order, essential activities also include attending religious services, participating in recreational activities (consistent with social distancing guidelines), taking care of pets, and caring for or otherwise assisting a loved one or friend.

State v. Local Law

Governor DeSantis has taken a gradual approach to social distancing measures related to COVID-19. On March 17th, he ordered all bars and restaurants across the state to discontinue all dine-in service. On March 27th, he ordered all persons who enter the state of Florida after being in New York, New Jersey, and Connecticut to isolate or self-quarantine for two weeks. 

In the meantime, the state’s largest counties, including Miami-Dade, Broward, Palm Beach, Orange, and Hillsborough, issued Stay at Home or Safer at Home orders requiring residents to stay home, with certain exceptions, and ordering all non-essential businesses to close, or cease in-person operations. In some cases, however, these Orders were only limited to those non-essential businesses that could not perform their work in adherence with the Centers for Disease Control guidance regarding social-distancing and other sanitary matters. Miami-Dade’s business closure order went into effect on March 19, while Orange County and Hillsborough followed on March 26 and 27, respectively.

Governor DeSantis’ Order supersedes any order issued by local officials.

What Is An Essential Business?

The U.S. Department of Homeland Security Essential Critical Infrastructure Workforce Guidance and Miami-Dade County Emergency Order 07-20 and its amendments include the following as Essential Businesses:

HEALTH CARE OPERATIONS 

• Research and laboratory services;
• Hospitals, doctors’ and dentists’ offices, clinics;
• Walk-in-care/Urgent care health facilities;
• Veterinary and animal health services;
• Elder care;
• Rehabilitation facilities, physical therapists, and therapists;
• Mental health professionals and psychiatrists;
• Medical wholesale and distribution;
• Home health care workers or aides;
• Nursing homes, or residential health care facilities or congregate care facilities;
• Medical supplies and equipment providers.

INFRASTRUCTURE, TRANSPORTATION, AND MARINE SERVICES

• Utilities, including power generation, fuel supply and transmission;
• Public water and wastewater;
• Telecommunications and data centers;
• Airports/Airlines;
• Taxis;
• Other private transportation providers providing transportation services via automobile, truck, bus, or train.
• Transportation infrastructure, such as bus, rail, or for-hire vehicles and garages.
• Private and municipal marinas;
• Boat launches;
• Docking services;
• Fueling services;
• Marine supply and other marina services.

MANUFACTURING

• Food processing, including all foods and beverages;
• Chemicals;
• Medical equipment and instruments;
• Pharmaceuticals;
• Safety and sanitary products;
• Telecommunications;
• Agriculture/Farms;
• Paper products;
• Factories;
• Manufacturing facilities;
• Bottling plants;
• Other industrial uses.

RETAIL

• Grocery stores and supermarkets, including all food and beverage stores;
• Food banks;
• Pharmacies;
• Convenience stores;
• Farmer’s markets, and farm and produce stands;
• Gas stations;
• Restaurants/bars (but only for take-out/delivery);
• Hardware and building material stores;
• Other establishments engaged in the retail of food products, pet supply, and such other household consumer products as cleaning and personal care products;
• Other stores that sell groceries and other non-grocery products, and products necessary to maintaining the safety, sanitations, and essential operations of residents;
• Businesses that ship or deliver groceries, food, goods, or services directly to residences;
• Restaurants and other facilities that prepare and serve food, but only for delivery, takeout, or drive-thru services.

SERVICES

• Trash and waste recycling collection, processing and disposal;
• Mail and shipping services;
• Laundromats/dry cleaning;
• Building cleaning and maintenance;
• Child care services;
• Auto repair;
• Warehouse/distribution and fulfillment;
• Funeral homes, crematoriums and cemeteries;
• Storage for essential businesses;
• Sales of computer or telecommunications devices and the provision of home telecommunications;
• Legal and accounting services as necessary to assist in compliance with legally mandated activities.

NEWS MEDIA

• Newspapers;
• Television;
• Radio;
• Other media services.

FINANCIAL INSTITUTIONS

• Banks and other related financial institutions;
• Insurance;
• Payroll;

PROVIDERS OF BASIC NECESSITIES TO ECONOMICALLY DISADVANTAGED POPULATIONS

• Homeless shelters and congregate care facilities;
• Food banks;
• Human services providers whose functions include the direct care of patients;
• Businesses providing food, shelter, social services, and other necessities of life for economically disadvantaged or otherwise needy individuals.

CONSTRUCTION

• Skilled trades such as electricians and plumbers;
• Other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes;
• Open construction sites, irrespective of the type of building;
• Architectural services;
• Engineering services;
• Land surveying services.

DEFENSE

• Defense and security-related operations supporting the U.S. Government or a contractor to the U.S. government.

SERVICES NECESSARY TO MAINTAIN THE SAFETY AND ESSENTIAL OPERATIONS OF RESIDENCES OR OTHER ESSENTIAL BUSINESSES

• Law enforcement;
• Fire prevention and response;
• Emergency management and response;
• Building cleaners or janitors;
• Local governments.

PET CARE

• Pet supply stores;
• Veterinarians;
• Pet boarding facilities;
• Animal shelters or animal care or management.

AGRICULTURE

• Food cultivation, including farming, livestock, and fishing.

AUTOMOBILE AND VEHICLE-RELATED OPERATIONS

• Gas stations;
• Auto-supply stores;
• Auto-repair facilities;
• New and used automobile dealerships;
  • However, for each of the above, social distancing as advised by the CDC must be practiced.

HARDWARE STORES AND TRADESMEN

• Hardware stores;
• Contractors;
• Appliance repair personnel;
• Exterminators;
• Fumigators;
• Landscaping businesses;
• Pool care services;
• Service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures.

EDUCATION

• Private colleges, trade schools, and technical colleges;
  • However, the above are only deemed essential as needed to facilitate online or distance learning;
• University, college, or technical college residence halls may also remain open to the extent needed to accommodate students who cannot return to their homes.

LOGISTICS

• Warehouses;
• Trucking;
• Consolidators;

SENIOR CARE

• Home-based care for seniors or adults;
• Assisted living facilities;
• Nursing homes;
• Adult day care centers;
• Senior residential facilities.

CHILDCARE

• Home-based care for children;
• Childcare facilities providing services that enable employees exempted to work as permitted, subject to group size and spacing restrictions.

OTHER OPERATIONS DEEMED ESSENTIAL

• Businesses providing mailing and shipping services, including post office boxes;
• Laundromats, dry cleaners, and laundry service providers;
• Businesses that supply office products needed for people to work from home;
• Businesses that supply other essential businesses with the support or supplies necessary to operate, and which do not interact with the general public;
• Businesses operating at any airport, seaport, or other government facility, including parks and government offices;
• Office space and administrative support necessary to perform exempted essential activities;
• Businesses providing propane or natural gas;
• Mortuaries, funeral homes, and cemeteries;
• Firearm and ammunition supply stores;
• Businesses providing services to any local, state, or Federal government, including municipalities, pursuant to a contract with such government;
• Any business that is interacting with customers solely through electronic or telephonic means, and delivering products via mailing, shipping, or delivery services.

What Does This Mean For Employers?

Employers with operations in Florida should review the CISA guidance and Miami-Dade County Emergency Order 07-20, and its amendments, to determine if they are deemed non-essential and must close beginning on April 3, 2020 at 12:01 am. 

Employers should also be prepared to address concerns from older employees and employees with underlying significant health conditions regarding whether or not they must come in to work. Employers should also carefully assess the availability of telework for these employees, as the availability of telework has significant implications for whether they are entitled to paid leave.

We will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate.

Paycheck Protection Program Business Application is Out

New Change from DOL on FFCRA

 
Item #1- 

Item #2- 

• Employees with an “essential business” will still report to work as normal
• Employees with a “non-essential business” will now qualify for the 80 hour Emergency Paid Sick Leave under FCCRA.