FAQs

#1. Can you clarify if an employer claims to be essential, and work from home isn’t available to an employee, do EPSLA and EFMLEA apply if he or she has COVID-19 or needs to stay home to care for a child or  spouse? 

An employee is eligible for paid sick leave under the Emergency Paid  Sick Leave Act (EPSLA) and expanded FMLA leave under the Emergency  Family and Medical Leave Expansion Act (EFMLEA) if he or she is unable  to work for qualifying reasons. If work from home is not available, the  employee will be eligible for paid leave if he or she is not able to  work at the employee’s worksite due to the need for leave (and any other  eligibility requirements are met). 

#2 Will you elaborate on paid sick leave when an employee is subject to a quarantine or isolation order? What happens if the business  is considered essential but still closes due to the state order? Will  the employees they sent home for 10 days still get paid sick leave?­ 

If an employer closes their business or worksite, employees are not  eligible for paid leave, effective as of the date of the closure.  However, they may be eligible for state unemployment benefits. This is  the case whether the employer closes for lack of business or because the  employer was required to close pursuant to a federal, state or local  directive. If employees had been eligible for paid sick leave prior to  the closure, the employer must still pay for paid sick leave used before  the business was closed. 

#3. Many parents can take care of kids and still work remotely. Are they still eligible for the expanded FMLA paid leave?­ 

Employees are only eligible for paid leave if they are unable to work  because they need to care for a child when the child’s school or  daycare is closed due to COVID-19. If parents are able to work while  caring for a child, or if another suitable individual is able to care  for the child, the employee would not be eligible for paid FMLA leave  (or paid sick leave).

If an employee is able to work remotely, but  cannot work his or her normal schedule or hours because of the need to  care for the child, the employee may take paid leave intermittently for  the portion of time the employee is unable to work (if the employer  agrees).

The U.S. Department of Labor (DOL) encourages employers  and employees to collaborate to achieve maximum flexibility. Therefore,  if employers and employees agree to intermittent leave of less than a  full work day for employees taking paid sick leave to care for their  child whose school or place of care is closed, or child care provider is  unavailable, because of COVID-19-related reasons, the DOL is supportive  of such voluntary arrangements.

 #4. If an employee is exposed to someone who has been diagnosed with  COVID-19, do they need a physician’s order to self-quarantine?  What  type of documentation is acceptable­? 

 An employee is eligible for paid sick leave if a health care provider  directs or advises the employee to stay home or otherwise  self-quarantine because:

             a)The health care provider believes that the employee has or may have COVID-19 or is particularly vulnerable to COVID-19, and

           b) The self-quarantine based upon that advice prevents the employee from working (or teleworking).

An  employee may not take paid sick leave under the FFCRA if he or she  unilaterally decides to self-quarantine for an illness without medical  advice, even if he or she has COVID-19 symptoms.

A written  doctor’s note or order is not required to substantiate medical advice to  self-quarantine for these reasons. Rather, the employer should document  the name of the health care provider who gave the advice to the  employee, along with the standard documentation of the employee’s name,  the dates for which leave is requested, the reason for leave and a  statement from the employee that he or she is unable to work for that  reason. 

 #5. Would an employee qualify for emergency sick time if they sought a medical diagnosis and the COVID test came back negative, but  the doctor still informed them to self-isolate until they no longer had a fever? 

­An employee is eligible for paid sick leave if a health care provider  directs or advises the employee to self-quarantine because of a belief  that the employee has, or may have, COVID-19, or is particularly  vulnerable to COVID-19, and the self-quarantine based upon that advice  prevents the employee from working (or teleworking). If the test is  negative, but the doctor still has a belief that the employee may have  COVID-19 or that the employee’s other illness makes him or her  particularly vulnerable to COVID-19, the employee would be eligible for  emergency paid sick leave. 

#6. I have groups with over 500 employees. What is available to them? I can’t find anything out there for them. Why?­ 

It is correct that most of the programs provided by the coronavirus  relief bills, including employee leave benefits, are designed to benefit  smaller businesses. In passing these bills, Congress prioritized aid to  these smaller companies as it determined that they had more of a need  for financial assistance. The CARES Act does provide for the U.S.  Treasury to establish a loan program that would be available to mid-size  companies (those with 500-10,000 employees). That program has not yet  been implemented. 

#7. ­If an employer with over 500 employees wants to provide these same leaves under the FFCRA for their employees, will they be in compliance?­ 

It is always up to an employer if they wish to provide more or better  benefits than are required by law. Employers are not prohibited from  providing benefits, such as paid leave, that are not required. However,  larger employers that provide paid leave for these reasons are not  eligible for tax credits provided by the FFCRA. Also, state or local  laws may require paid sick or family leave, so employers should be sure  to follow those requirements.

Employers should use caution when  using a law that does not apply to them as the basis for any benefits,  including leave programs or policies. An employer who is not subject to  the FFCRA with respect to paid leave has more freedom to determine leave  parameters, such as eligibility, duration of leave, reasons for leave  and amount of pay, in a manner that works for the business. Attempting  to follow requirements that do not apply could be problematic for an  employer if they are too burdensome.

#8.  Can an employer force employees to take PTO when sick with COVID-19? 

An employer may require employees to stay home from work when sick  with COVID-19. However, if an employee is eligible for paid sick leave  under the EPSLA, an employer may not require the employee to use  provided or accrued paid vacation, personal, medical, or sick leave  before the paid sick leave required by the EPSLA.

Employers also may not require employees to use such existing leave concurrently with  the paid sick leave under the EPSLA. But if the employer and employee  agree, the employee may use preexisting leave entitlements to supplement  the amount he or she receives from paid sick leave, up to the  employee’s normal earnings. Note, however, that the employer is not  entitled to a tax credit for any paid sick leave that is not required to  be paid or exceeds the limits set forth under the EPSLA.

#9. Are the FSA tax credits just for employer contributions to an FSA, or are they for employer and employee contributions? 

The amount of qualified health plan expenses may include contributions  to an HRA (including an individual coverage HRA), or a health FSA. To  allocate contributions to an HRA or a health FSA, employers should use  the amount of contributions made on behalf of the particular employee.  The amount of qualified health plan expenses that is taken into account  in determining the credits generally includes both the portion of the  cost paid by the employer and the portion of the cost paid by the  employee with pre-tax salary reduction contributions. However, the  qualified health plan expenses should not include amounts that the  employee paid for with after-tax contributions. 

#10. How should employers with an unlimited PTO program handle the two-week paid leave accommodation? 

The paid sick leave provided under the EPSLA is in addition to the  employer’s existing PTO policy. If an employee is eligible for paid sick  leave under the EPSLA, an employer may not require the employee to use  PTO before the paid sick leave required by the EPSLA. Also, employers  may not require employees to use PTO concurrently with paid sick leave.  But if the employer and employee agree, the employee may use PTO to  supplement the amount he or she receives from paid sick leave, up to the  employee’s normal earnings. Note, however, that the employer is not  entitled to a tax credit for any paid sick leave that is not required to  be paid or exceeds the limits set forth under the EPSLA. 

Yes on June 28, 2018, Governor Charlie Baker signed a Bill that establishes a mandatory statewide paid family and medical leave program for all employers, which will be administered by the new Department of Family and Medical Leave. The leave program will be financed through employer and employee contributions for groups with 25 or more full-time employees - employers are required to contribute to the tax.

Yes on December 14, 2018, a federal judge rules that the entire Affordable Care Act is invalid due to the elimination of the individual mandate penalty in 2019.  However, the White announced the ACA will remain in place pending appeal.  Additionally, the Department of Health and Human Services confirmed that it will continue administering and enforcing all aspects of ACA. 

The Affordable Care Act requires applicable large employers (ALEs) to offer affordable, minimum value health coverage to their full-time employees or pay a penalty.  The IRS clarified that ALEs can use an affordability safe harbor to adjusted affordability contributions percentages.  Employer-sponsored coverage will generally be considered affordable under the employer shared responsibility rules if the employee's required contribution for self-only  coverage does not exceed 9.86% of the employee's household income for 2019 plan year.

Generally, all employees are counted (either as full-time employees or FTEs) when an employer is determining whether it is an ALE, but there are some exceptions.

· Seasonal workers: An employer is not an ALE if both of the following apply:

o The employer’s workforce exceeds 50 full-time employees (including FTEs) for 120 days or fewer during the preceding calendar year; and

o All of the employees in excess of 50 employed during that period of no more than 120 days are seasonal workers.

“Seasonal workers” are   workers who perform labor or services on a seasonal basis (as defined by the   DOL) and retail workers employed exclusively during holiday seasons. For this   purpose, employers may apply a reasonable, good faith interpretation of the   term “seasonal worker” and a reasonable, good faith interpretation of the   DOL’s definition of seasonal worker.

· TRICARE/Department of Veterans Affairs (VA) Coverage: Employees who have coverage under TRICARE or a VA health program are not taken into account in determining if an employer is an ALE.

These exceptions apply solely for purposes of determining whether an employer is an ALE. For additional information, see Section 4980H(c)(2)(F) and Section 54.4980H-2(b) of the regulations.

 Where a loss of coverage is a result of an employee’s termination of employment (other than by reason of gross misconduct) or reduction in hours, qualified beneficiaries are entitled to continue coverage for a maximum of 18 months. 

Where a loss of coverage is a result of any of the following, qualified beneficiaries are entitled to continue coverage for a maximum of 36 months: 

· Death of a covered employee; 

· Divorce or legal separation of a covered employee from the covered employee’s spouse;

· A covered employee becoming entitled to Medicare benefits; and 

· A dependent child ceasing to be a dependent child under the terms of the health plan. 

Where a loss of coverage is a result of an employee’s termination of employment (other than by reason of gross misconduct) or a reduction in hours and a qualified beneficiary is determined by the Social Security Administration to be disabled before, at or within 60 days of the date of the qualifying event, all qualified beneficiaries within that family are entitled to COBRA for a maximum period of 29 months. To benefit from this extension, any qualified beneficiary within the family must notify the plan administrator as required by the reasonable procedures established by the plan administrator. 

Where a qualified beneficiary was determined disabled by the Social Security Administration prior to the qualifying event, the qualified beneficiary is considered to meet the statutory requirement of being disabled “within the first 60 days of COBRA coverage.” 

 If the employee was enrolled in Medicare prior to his or her termination or reduction in hours (for example, retirement), the employee is entitled to 18 months of COBRA continuation coverage. Where the spouse or dependent is covered under the plan on the day before the employee's termination or reduction in hours, the spouse and dependent are entitled to COBRA continuation coverage for the longer of:   

· 18 months from the date of the employee's termination or reduction in hours; or 

· 36 months from the date the employee became enrolled in Medicare.

COBRA continuation coverage will terminate before the maximum coverage (that is, 18, 29, 36 months) period if: 

· COBRA premiums are not made in a timely manner; 

· The employer ceases to provide a health plan to any employee;

· After electing COBRA continuation coverage, the qualified beneficiary first becomes covered under another health plan; or   

· After electing COBRA continuation coverage, the qualified beneficiary first becomes entitled to Medicare (Part A or B). 

Provided that a qualified beneficiary has received no less than 18 months of COBRA continuation coverage, COBRA continuation coverage will terminate where COBRA coverage was extended to 29 months due to a disability as determined by the Social Security Administration, and the Social Security Administration later determines that the qualified beneficiary is no longer disabled. 

Where an individual is covered under COBRA, but not a qualified beneficiary, the individual loses coverage when the qualified beneficiary is no longer covered under COBRA. 

COBRA premiums may not exceed 102 percent of the cost to the plan for similarly situated beneficiaries with respect to whom a qualifying event has not occurred (without regard to whether such cost is incurred by the employer or employee). 

Where COBRA continuation coverage is extended due to disability, COBRA premiums may not exceed 150 percent of the cost to the plan for similarly situated beneficiaries with respect to whom a qualifying event has not occurred (without regard to whether such cost is incurred by the employer or employee) for months 19 through 29. Where the disabled qualified beneficiary is no longer covered under the plan, the remaining qualified beneficiaries within the family are entitled to continue coverage for up to 29 months at an amount not to exceed 102 percent of the cost to the plan.

COBRA premiums must be established before a 12-month determination period. A determination period must be applied consistently from year to year. During a determination period, COBRA premiums may only be increased in the following three cases: 

· COBRA premiums were set below the maximum amount permitted (for example, 102 percent of the plan’s cost); 

· COBRA premiums are increased to 150 percent of the plan’s cost as permitted during disability extensions; or 

· The qualified beneficiary has changed his or her election (that is, single to family, HMO plan to PPO plan). 

The qualified beneficiary’s first COBRA premium payment is due within 45 days of the date of his or her COBRA election. 

For subsequent COBRA premiums, a qualified beneficiary’s payment is considered timely if made on the later of the following: 

· Within 30 days of the beginning of the coverage period (that is, the beginning of the month); 

· The date on which similarly situated active employees are required to pay for coverage; or 

· The date on which the plan is permitted to pay the insurance company, HMO, or other entity that it pays for coverage. 

Payment is considered made on the date it was sent by the qualified beneficiary. COBRA premiums may be paid by any third party on behalf of the qualified beneficiary. For example, a qualified beneficiary’s new employer may pay COBRA premiums to the former employer on behalf of the qualified beneficiary. 

If a qualified beneficiary makes timely payment in an amount that is not significantly less than the amount due, the payment is deemed to meet the qualified beneficiary’s payment obligation, until the plan notifies the qualified beneficiary and grants a reasonable amount of time to correct the deficiency. For this purpose, 30 days is considered reasonable.

 Each qualified beneficiary must be offered an opportunity to elect the same coverage that was provided on the day before the qualifying event. 

Also, qualified beneficiaries must be given the same rights as similarly situated active employees. Where similarly situated active employees are permitted to change between health plans or add dependents to the plan during an annual open enrollment, qualified beneficiaries must be permitted to do the same.

 If a qualified beneficiary participates in a region-specific benefit package (such as an HMO) that will not service his or her health needs in the area to which they are relocating (regardless of the reason for the relocation), the qualified beneficiary must be given an opportunity to elect alternative coverage that the employer makes available to active employees. While the employer is not required to put a plan in place to accommodate the relocated qualified beneficiary, it must make available coverage which it has available, even if that qualified beneficiary was not eligible for that coverage while he or she was an active employee. 

If a qualified beneficiary waived COBRA continuation coverage, he or she may revoke the waiver at any time during the initial election period. COBRA continuation coverage is effective on the date the waiver is revoked.