Gov. Mike DeWine announced a plan to slowly re-open the state of Ohio. The current re-opening plan phases businesses back into operation as well as institutes safety protocols to ensure workers and customers are safe. The guiding principles for this plan are: 1) Protect the health of employees, customers and their families; 2) Support community efforts to control the spread of the virus; and 3) lead in responsibly getting Ohio back to work.
Stay-at-home orders will remain in place, including limits on gatherings, but with modifications to allow additional business operations. The current Stay Safe Ohio order is in place until May 29, 2020.
5 protocols for ALL businesses
Sector Specific Operating Requirements
In addition to the 5 safety protocols above, there may be sector specific operating requirements your business is subject to. To see the latest overview of requirements per sector, please visit the COVID-19 page of the Ohio Health Department.
Ohio Department of Health Hotline – 1-833-4 ASK ODH
On March 18, 2020 President Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law which provides a variety of relief for Americans in the face of the COVID-19 pandemic.
This bill takes effect April 1, 2020 and will sunset on December 31, 2020.
The FFCRA applies to nearly all employers with fewer than 500 employees, including persons acting on behalf of an employer and successors in interest. It also applies to public employers. Any college or university that is a political subdivision of a state is a public employer.
The 500-employee threshold for private employers is dependent on the number of employees at the time an employee would take leave. It includes both full and part-time employees among all worksites/divisions within the United States, as well as employees currently on leave, temporary employees, and day laborers supplied by a temporary placement agency. Not included in the count are independent contractors and employees who have been laid off or furloughed and have not subsequently been reemployed. Separate corporations may be considered a single employer if the two entities meet the integrated employer test under the FMLA.
This bill takes effect April 1 , 2020 and will sunset on December 31, 2020
Included within the FFCRA is the Emergency Paid Sick Leave Act (E-PSL Act). The E-PSL Act mandates that certain employers provide employees who are unable to work or telework because of one of six reasons related to COVID-19 with a period of paid leave.
In order to utilize this paid sick time, an employee must be unable to work (or telework) due to one of the six qualifying reasons:
1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis;
4. The employee is caring for an individual who is subject to a federal, state or local quarantine order, or the individual has been advised to self-quarantine due to concerns related to COVID-19;
5. The employee is caring for his/her child, if the child’s school or daycare has been closed or the child’s care provider is unavailable due to COVID-19 precautions; or
6. The employee is experiencing any other substantially similar condition specified by Health and Human Services in consultation with the Department of the Treasury and the Department of Labor
If an employer allowed an employee to go on paid leave prior to the effective date of the E-PSL (April 1, 2020) for one of these reasons, the employee will still be permitted to take the full amount of time permitted under the law after its effective date.
A “quarantine” or “isolation” order includes a broad range of governmental orders, including stay-at-home and shelter-in-place orders directed toward some or all citizens. However, an employee subject to such an order may only use E-PSL if, but for being subject to the order, he or she would be able to perform work, either at the employee’s workplace or by telework. Thus, E-PSL will not be available if an employer closes its business, even if the closure is due to a governmental stay-at-home order.
If an employee is able to telework, he or she may not take paid sick leave if “(1) his or her employer has work for the employee to perform, (2) the employer permits the employee to perform that work from the location where the employee is self-quarantining, and (3) there are no extenuating circumstances, such as serious COVID-19 symptoms, that prevent the employee from performing that work.”
Regarding an employee’s need to care for another (the fourth E-PSL provision mentioned above), the employee must have a genuine need to care for the individual, and the individual being cared for must be an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person.
An employee may take E-PSL to care for a son or daughter whose school or place of care has been closed, but only if no other suitable person is available to care for the child during the period of such leave. If another suitable individual, such as a co-parent, co-guardian, or other child care provider, is available to provide care to the child, then the employee does not have a need for leave.
Pay Requirements During E-PSL Leave
Full-time employees can receive up to 80 hours of sick pay. Part-time employees are eligible for up to the number of hours they are normally scheduled to work in a two-week period.
Pay is calculated differently depending on the reason for the leave. If the employee takes leave related to reasons (1), (2), or (3) above, then the employee will be paid his or her average regular rate (or minimum wage, if higher) up to $511/day or $5,110 in the aggregate. If the employee takes leave related to reasons (4), (5), or (6) above, then employees will be paid two-thirds their average regular rate (or minimum wage, if higher) up to $200/day or $2,000 in the aggregate.
Obligation to Restore Employee to Equivalent Position
Employers are obligated to restore employees who take E-PSL to an equivalent position upon their return to work. Employees are not protected from employment actions, such as furloughs or layoffs, which would have affected the employee regardless of whether leave was taken. To deny job restoration, the employer must show that the employee would not otherwise have been employed at the time of reinstatement.
Once an employee has used his or her E-PSL benefit (up to 80 hours), the employee is not entitled to additional paid sick leave, even if the employee changes employers. If an employee uses some, but not all, of the E-PSL benefit and then changes employers, then the employee is entitled only to the remaining portion of E-PSL from the new employer.
Also included within the FFCRA is the Emergency Family and Medical Leave Expansion Act (E-FMLA), which amends provisions of the FMLA to broaden coverage and require a period of partially-paid leave taken from April 1, 2020 to Dec. 31, 2020. Employees are entitled to up to 12 weeks of E-FMLA — less any FMLA the employee has already used in the preceding 12 months — based on a qualifying reason. If an employee has exhausted his or her 12 weeks of FMLA, the employee is not eligible for E-FMLA (but may be eligible for E-PSL).
Subject to limited exceptions, private employers with fewer than 500 employees — and also most public employers — are required to provide E‑FMLA (a) because of a qualifying need related to a public health emergency (b) to all employees who have been employed for at least 30 days before leave is requested.
EFMLEA Eligibility Criteria
Employers with fewer than 50 employees may qualify for an exemption from the requirement to provide leave “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”
Pay Requirements During E-FMLA Leave
Under E-FMLA, the type of leave is unpaid leave for the first two weeks of leave. After the first two weeks of unpaid leave, employers must pay employees two-thirds their average regular rate times the employee’s scheduled number of hours for each day of leave taken. However, in no event is the employer required to pay the employee more than $200 per day, or $10,000 over the entire course of E-FMLA leave.
While the first 10 days of leave are unpaid under the E-FMLA, this period of leave may be paid under the E-PSL Act — the details of which are set forth above. Employees can also elect to use other available paid leave — vacation, personal, medical, and sick — concurrently with the unpaid 10 days of E-FMLA. And if the employee has already exhausted his or her allotment of E-PSL Act time, the employer could demand that the employee use other available paid leave — vacation, personal, medical, and sick — concurrently with the unpaid 10 days of E-FMLA.
The inclusion of E-FMLA as an additional qualifying reason for FMLA leave does not expand the 12-week allotment that an employee is otherwise entitled to under the FMLA. Employees are entitled to a total of 12 workweeks for FMLA or E-FMLA reasons during the 12-month period used by the employer to measure its employees’ 12-week allotment.
Obligation to Restore Employee to Equivalent Position
Employers generally must restore employees who take E-FMLA to an equivalent position upon their return to work. However, employees are not protected from employment actions, such as furloughs or layoffs, which would have affected the employee regardless of whether leave was taken.
Employers with 25 employees or less must make reasonable efforts to restore the employee to an equivalent position with equivalent pay and benefits unless the position was eliminated due to: (1) economic conditions or (2) other changes in operating conditions affecting employment and caused by the coronavirus emergency. If an equivalent position is not available, the employer must make reasonable efforts for one year — after the employee’s leave starts or after the COVID-19 health emergency concludes — to contact the employee regarding any equivalent positions that become available.
If an employer furloughs employees or closes its business, resulting in the employee not working, the employer will not be required to provide E-PSL or E-FMLA leave after the date of the furlough or closure.
Similarly, if an employer reduces an employee’s work hours because it does not have work for the employee to perform, the employee is not entitled to E-PSL or E-FMLA leave for the hours that the employee is no longer scheduled to work.
In both of these situations, the employee is not unable to work due to a need for leave; rather, the employee is not working because the employer is no longer operating or does not have sufficient work to do.
Additionally, an employee who is subject to a stay-at-home or shelter-in-place order directed toward some or all citizens may only use E-PSL if, but for being subject to the order, he or she would be able to perform work, either at the employee’s workplace or by telework. Thus, E-PSL will not be available if an employer closes due to a governmental stay at home order.
An employee’s entitlement to or use of E-PSL or E-FMLA is in addition to — not instead of — existing rights and benefits to which the employee is entitled under (1) another federal, state, or local law (except FMLA); (2) a collective bargaining agreement; or (3) an employer policy in existence prior to April 1, 2020.
In addition, an employee who takes leave to care for a son or daughter whose school or place of care is closed due to COVID-19 may take E-PSL concurrently with E-FMLA. Thus, the 10-day (or two-week) period of unpaid leave under the E-FMLA may be paid through the use of E-PSL. If an employee has exhausted his or her E-FMLA entitlement due to prior use of traditional FMLA, the employee is not precluded from using the E-PSL benefit.
An employee may elect to use other accrued benefits prior to using E-PSL, but an employer may not require an employee use other available benefits prior to taking E-PSL. However, the regulations state that an employer may require an eligible employee to use provided or accrued leave, such as vacation or PTO, concurrently with the employee’s use of E-FMLA. If the employee elects or the employer requires the use of accrued leave concurrently with E-FMLA, then the employer must pay the employee the full amount to which the employee is entitled under the employer’s existing policy for the period of leave taken.
If an employee used any amount of leave prior to April 1, 2020, due to COVID-19, the employer cannot deny the employee use of E-PSL or E-FMLA — assuming the employee qualifies — or delay or postpone the employee’s use of such benefits, except as associated with the use of traditional FMLA.
On the other hand, an employer is not required to provide financial compensation, payout, or reimbursement to employees for any unused E-PSL or E-FMLA upon the expiration of the FFCRA on Dec. 31, 2020.
Employers with fewer than 50 employees may qualify for an exemption from the requirement to provide E-PSL and E-FMLA leave “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” To be entitled to the exemption, an authorized officer of the business must determine one of three conditions is present:
If a small business denies E-FMLA to an employee on the basis of the small business exemption, the employer must document that a determination has been made pursuant to the above criteria and maintain such documentation for four years.
Intermittent E-PSL and E-FMLA leave is only available if the employer and employee agree, and only under certain circumstances. If the employee is working at the employer’s normal work site, E-PSL generally must be taken in full-day increments. An exception permits the employer and employee to agree that the employee may take E‑PSL intermittently if the reason for the leave is to care for the employee’s son or daughter whose school or place of care is closed, or if the childcare provider is unavailable, because of reasons related to COVID-19. Similarly, employers and employees may agree that an employee may take E-FMLA intermittently.
Additionally, if the employer directs or permits the employee to telework, then the employer and employee may agree that the employee may take E-PSL and/or E-FMLA leave intermittently in any agreed-upon increments of time — but only for a COVID-19 related reason.
NOTE: FFCRA does not impact an employee’s exempt status under the FLSA. Thus, an employee’s use of intermittent leave combined with either paid sick leave or expanded family and medical leave does not undermine the employee’s exempt status.
While an employee is taking E-PSL or E-FMLA, the employer generally must maintain the employee’s coverage under any group health plan on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. If the employer makes any changes to its group health plan, those changes must apply to all employees, including those on leave.
An employee on leave remains responsible for paying his or her portion of group health plan premiums that had been paid by the employee prior to taking leave, even if the employee’s leave is unpaid or insufficient to cover the employee’s share of the premiums. An employee may elect not to retain group health plan coverage while on leave; however, when the employee returns from leave, he or she is entitled to be reinstated on the same terms as prior to taking leave.
If the need for leave is foreseeable, employees should notify employers about their request to take E‑PSL or E-FMLA “as soon as practicable.” Employees must also provide documentation substantiating the need for such leave prior to taking it. The employee must provide: (1) his or her name; (2) the date(s) for which leave is requested; (3) the qualifying reason for the leave; and (4) an oral or written statement that the employee is unable to work because of the qualified reason for leave. If the employee is requesting leave to care for a son or daughter, the employee must also provide the name of the son or daughter, the name of the school or childcare provider that is closed, and a representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave.
The employer may also request additional documentation needed to support a request for tax credits. An employer is not required to provide leave if documentation is insufficient to substantiate the applicable tax credit.
Employers covered under the FFCRA, including employers that meet the small business exemption, must post and keep posted on its premises, in a conspicuous place, a notice explaining the paid leave provisions and providing information concerning the process for filing complaints for violations of the FFCRA. An employer may also email or direct mail the notice to employees, or post the notice on an internal or external website available to employees.
However, the FFCRA regulations do not require employers to respond to employees who request or use E-FMLA leave with notices of eligibility, rights and responsibilities, or written designations that leave use counts against employees’ FMLA leave allowances.
The FFCRA also provides a tax credit to employers for wages paid for leave covered by the legislation. The amount of the credit is capped at $511 of wages per day paid to each employee to care for themselves and capped at $200 of wages per day paid to each employee to care for a family member or child if their school is closed. Additionally, the credit is generally limited to 10 days of wages per employee. The credit is applied to the employer portion of the 6.2% Social Security Tax and is refundable if it exceeds the amount the employer pays in such payroll tax. The legislation provides a similar tax credit for self-employed individuals against the self‑employment tax.
State and local governments and any instrumentality thereof, including colleges and universities that are political subdivisions, are excluded from receiving the tax credit for paid leave under the E-PSL Act and E-FMLA.
IRS Guidance on the tax credits is available at the website below:
Special Notification for Non-Profits
Houses Passes COVID-19 Relief Bill With Nonprofit Provisions
The employer is required to retain all documentation for a period of four years, regardless of whether E-PSL or E-FMLA leave was granted or denied. An employer that denies a leave request based on the small business exemption must document the determination by its authorized officer that the employer is eligible for the exception and retain such documentation for four years.
The employer must retain additional documentation for a period of four years in order to claim tax credits from the Internal Revenue Service (IRS), including:
Employers should provide employees with the current version of the state mass layoff form, which provides a unique code to identify the eligibility is related to COVID-19. Such cases will receive the following exceptions to standard unemployment benefits:
The following laws may come into play when working dealing with COVID-19.
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