KMS COVID-19 Webinar
Kansas Manufacturing Solutions hosted a webinar on March 24, 2020. The objective of the webinar was to provide guidance to Kansas manufacturers.
The agenda consisted of:
- An update by Senator Moran's office about Congressional activity regarding COVID-19
- COVID-19 Update and Current Guidance from the CDC
- Responding to COVID-19 in the workplace
- Families First Coronavirus Response Act
- Family and Medical Leave Act (FMLA) Expansion
- Emergency Paid Sick Leave
- Layoffs/Furloughs
- "Stay at Home" Mandates
Here is the link to the video replay of the webinar: REPLAY
(The video is housed in a private KMS video library. In order to access the video, you will need to register. Name and email address only)
Download the presentation: Coronavirus in the Workplace and FFCRA Webinar
Our presenters were David Parkhurst of Cornerstone Companies and Kyle Russell of Jackson Lewis. We thank them for sharing their knowledge and expertise.
If you have a question for Senator Moran, please contact Alex Richard, State Director of Senator Moran's Office at 913.605.8170 or Alex_Richard@moran.senate.gov
For COVID-19 manufacturing resources, visit the KMS COVID-19 Manufacturing Resource webpage.
A list of questions and answers from the webinar is listed below. If you have any additional questions, please email info@wearekms.com and we will attempt to have them answered for you.
(The materials presented in this webinar and on this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem. Participation in this webinar does not create a client relationship between the participant and our presenters. The opinions expressed in this webinar are the opinions of the individual presenters and may not reflect the opinions of the presenter’s company or KMS.)
Will an enforcement of mandatory quarantine be made in Kansas? A statewide Stay at Home order has not been issued yet; however, we expect this may happen soon, especially if the number of cases continues to rise.
While perhaps premature, I am interested in how the credits will be handled for an employer. Employers who are required to pay wages for employees on leave under the FFCRA may take a Social Security tax credit during the applicable quarter for the amount of wages, employer health insurance premiums allocable to the wages (guidelines to come on this), and employer Medicare tax paid on those wages. Employers need not pay employer Social Security tax on wages paid to employees on leave under the FFCRA.
What do we do if we have a confirmed case from the Production Floor? The employee must be isolated pursuant to CDC and KDHE guidelines. Those who have come into close contact with the employee (wihin 6 feet for at least 10 minutes) should be quarantined at home for 14 days.
We currently use PTO which is a combination of vacation and 40 hours of sick leave do we need to use 2 codes for employees. Not necessarily, for your company's "normal" leave entitlement. However, wages paid under FFCRA should be tracked separately from any other PTO, because employers are entitled to take a tax credit.
We are interested in how to pay employees if the government forces us to shut down. Generally, non-exempt employees only need to be paid for the hours they work. Exempt employees generally need to be paid full weekly salary for any week in which any work was performed; however, accrued PTO may be used to accomplish this if the employee did not work the entire week.
Only questions at this time is how the FMLA expansion and Emergency paid leave time will work together for childcare issues. Employees whose son or daughter's school or child care facility is shut down can take 2 weeks of paid sick leave and then 10 weeks of paid emergency FMLA - all payable at 2/3 regular pay, capped at $200/day or $1,000/week ($12,000 in all).
Is the Emergency FML Expansion Act of 12 weeks on top of the normal Family Medical Leave of 12 weeks totaling 24 weeks? No - it is not an additional 12-week leave entitlement. It is just an additional (paid) reason why employees can take FMLA.
If we have an employee who tests positive is everyone under quarentine? See CDC/KDHE guidelines on this? - not necessarily. Only employees who were within "close contact" of laboratory confirmed cases of COVID-19 must be quarantined for 14 days. Generally, this would only apply to employees who live with the positive employee or have been within 6 feet of the positive employee for at least 10 minutes.
If an employee uses their sick pay and vacation during their FMLA is a business still required to pay 80 hours of pay? The emergency paid sick leave must be offered in addition to any other available paid leave. However, unlike other paid leave, the employer gets a payroll tax credit in the amount of wages paid out.
If an employee choses to stay home do I have to continue to pay them? Not unless company policy says so, or unless the reason they are staying at home is one of the qualifying reasons for emergency FMLA or PSL.
How is it best to take employee temperatures before reporting to work? Should this data be maintained or only positive results? See guidelines covered during presentation. If results are kept, treat them as confidential medical records under the ADA.
How do mandatory stay home orders affect manufacturers who's workers can not work from home? If the business is considered "essential" or otherwise exempt under the Stay at Home order, employees may come to work. If not, the business must generally stop in-person activity during the duration of the stay at home order.
Does a person need to be employed for a period time to be eligible? For emergency FMLA, employees must be employed for 30 calendar days in order to qualify. For emergency paid sick leave, employees are eligible on Day 1.
As a company under 50 employees are we required to provide FMLA? For this emergency reason only, yes - unless compliance would jeopardize the existence of the business as a going concern. If that is the case, document the reasons.
Do employers with less than 15 employees have to comply to the new Families First Leave Act? Yes. The act applies to all employers with less than 500 employees.
Is this paid sick leave benefit intended to be on top of any "sick" policy a company normally provides? Yes. It is two weeks of additional paid leave, available immediately as of 4/1/20.
Has the FFCRA (FMLA & PSL) been passed and signed into law? Yes
Does PSL apply to Employers with less than 50 Employees? Yes. PSL applies to all employers with less than 500 employees. DOL may, however, issue regulations offering an exemption to employers with less than 50 employees in situations where compliance would jeopardize the business as a going concern
I have 13 employees, when will the DOL issue regs excluding employers with less than 50 employees if this will jeopardize the viability of the business? DOL issued FAQs on 3/24/20. For now, employers with less than 50 employees who will want to claim the exemption should document the reasons why compliance would jeopardize their business as a going concern.
Since the Act says effective No Later Than 4/2/2020, are employers who have asked employees to stay home prior to that date eligible for provisions? Act is now effective April 1 according to DOL. Employers do not get the tax credit for any paid leave offered before that date, or for any paid leave offered at any time that is not required to be offered by the FFCRA.
If an employee goes to Johnson County on their day off, can we require them to stay home for 14 days? Is the business required to pay for that time off? It is not currently part of the CDC or KDHE recommendations to quarantine employees who go to other parts of Kansas that are under a stay at home order. You would not be required to provide the employee with the paid time off, and you would likely not get the tax credit if you pay them. Check company policy and pay requirements (for example, is the employee salaried exempt?) to determine whether to pay them if you choose to keep them at home.
Do you know what the interest rate will be on SBA loans Eligibility for Economic Injury Disaster Loans is based on the financial impact of the novel coronavirus, COVID-19? The interest rate is 3.75 percent for small businesses and 2.75 percent for private non-profit organizations. 30 year fixed. Businesses may apply online, receive additional disaster assistance information and download applications at https://disasterloan.sba.gov/ela
We have employers from Missouri giving letters to their employees stating they are an essential busines in case stopped by law enforcement. Does Kansas businesses have to give them letters? Especially if they drive from Missouri each day and work in Kansas. Some jurisdictions are requiring this type of letter for employees who are working during the Stay at Home orders. So far, Kansas and the KC area have not required it.
IF someone has a child who is disabled and over 18 and wants to be home so they dont have exposure at work and possibly take home to their child. Could they take a personal leave unpaid? This position isn't available to have Telework. Would this be covered under ADA? Or just a personal leave? ADA only applies to an employee's own medical condition. Whether the employee is eligible for "normal" FMLA would depend on whether the family member has a "serious health condition" as defined by the FMLA. Personal leave (paid or unpaid) would depend on company policy and could be up to the employer's discretion to some extent.
Does either act FMLA or Sick leave apply to companies less than 10 employees? I have 7. Both acts apply to all employers with less than 500 employees, although if employers with less than 50 employees believe compliance would threaten your business as a going concern, they may document the reasons for this, and seek an exemption under forthcoming DOL regs.
Do employees have to provide confirmation of any of the PSL's? Perhaps you could require this - but CDC is recommending backing off on doctor's note requirements during this time.
To confirm, fmla expansion is employers less than 500 employees? Yes
Do wages paid for sick leave due sx's of COVID-19 before 4/1 qualify for the tax credit? No. The tax credit is only for wages "required to be paid" under the act - April 1 or later.
Wyandotte manufacturers - are you saying they do not have the same exemptions for "essential" as the national standards put out by CISA? For the local Stay at Home orders, you will want to read the specific order (Wyandotte in this case) and see if your business is or could be excluded as "essential." The orders differ by county.
Should i have folks self-quarantine if they travel to places that are in lock down like KC? That is not currently part of the guidance in Kansas or from the CDC, and there is no current government order requiring you to do so.
What if we have an agency group in Sedgwick county but we are in McPherson Cty? Can they still come to work since we are an essential business? This would depend on the language of the order. Regardless, employees are generally allowed to come to work if their functions, or their businesses, are considered essential under the applicable order.
We make trailers. What if we are considered 'essential' by the US Gov.? Essential governmeent functions are generally excluded from local "Stay at Home" requirements.
How long does WARN Act to effect? We have approx. 80 employees but say we have to ramp up to 101 in 4 months....then what? WARN Act does not apply simply based on the possibility of ramping up to more than 100 employees in the future.
Will employees be required to complete the same FMLA documents as regular FMLA? Presumably, you can require this, but we are waiting for further guidance from Congress or the DOL. For now, due to the emergency nature of the law, we would recommend not strictly requiring the documents before allowing leave.
Lyon County does not have a stay at home order. That was miscommunicated yesterday. Thank you. You are correct. Upon further investigation it was miscommunicated by the state.
Is there any part of FFCRA this still applies to employees with greater than 500 employees? No - employers with more than 500 employees have no new obligations under this law.
How should you approach employees with known high risk medical issues? You may remind them (along with all employees) of safety and hygiene procedures. Unless they fall under CDC or state/local health department orders for quarantine/isolation, you may not generally order them to stay home just because you are concerned they may get the virus.
Are FMLA forms required for the expaned FMLA? It is not clear yet, but we would use the existing forms designating leave as FMLA when possible - or at least notify the employee of this somehow - until the DOL issues further guidance.
The FFCA law goes into effect on 4/2, what are we required to do in the areas covered by this law? Basically covered in the presentation - law is now effective April 1 according to DOL. Generally, employers with fewer than 500 employees must offer emergency FMLA and emergency paid sick leave for qualifying reasons to covered employees.
Does leave have to be consecutive? There does not appear to be a requirement that employees take either type of leave consecutively.
To what extent can we verify a claim for either emergency sick leave or emergency FMLA is legit? Presumably, under the emergency FMLA provision, the employer would be able to request documentation that the employee's son or daughter's child care facility or school is shut down - just like certification of normal FMLA leave. Sick leave - answer is not clear, but CDC is encouraging employers to be lenient on requiring doctor's notes during this time so that medical clinics and hostpitals don't get overwhelmed.
Will the employers receive reimbursment for Emergency Sick or FMLA Leave paid before April 2? DOL now says the law is effective on April 1. Based on the language of the tax credit, we do not believe employers will be entitled to take the credit for paid leave granted before that date. The credit is only for "wages required to be paid" under the FFCRA.
For anyone that is having staff work reduced hours, say 32 hours per week or 24 hours per week, are they still accruing vacation as if they are working a full 40 hours or are they scaling back the vacation accruals? Unsure if this will be applicable but wanted to throw it out there. In Kansas, employers generally just need to follow their own policies regarding accrual of vacation for employees who are still active.
Are there any provisions for employees that work on commissions and their commissions are down due to this virus? Pay during leave is calculated based on the employee's average weekly "regular rate of pay" looking back 6 months. Commissions, tips, and piece rates count in this calculation.
Will Federal guidelines regarding essential businesses supercede local Stay at Home orders? This is to be determined. It depends on the scope of any federal orders and whether they supersede state and local orders by their terms.
What about the companies who are more than 500? Larger employers (more than 500 employees) have no new obligations under the FFCRA.
FFCRA: Is DOL less than 50 only for first responder companies only? Please clarify. (Apologies. Not sure I understand the question?) DOL can issue regulations excluding any employer who employs less than 50 from the obligations under this law, in situations where compliance may threaten the viability of the business as a going concern.
I have employees that are scared and want to isolate to avoid illness. Are there any benefits available to them? If employees are not required to quarantine or isolate pursuant to government orders or guidelines or a health care provider’s advice, they are not entitled to paid leave under the FFCRA. Whether you offer them paid leave to self-quarantine because they are fearful depends on your company’s PTO policy and, in some cases, the company’s discretion.
We have 16 employees – what are the guidelines for businesses under 50? Can we tell an employee that they can’t take the 10 weeks leave if it will jeopardize production?
DOL has just issued FAQ including how to claim the exemption for employers with less than 50 employees. For now, DOL is asking these employers who wish to take the exemption to document the reasons why compliance with the FFCRA would jeopardize the existence of the business as a going concern. DOL is asking that these businesses not send anything to the DOL at this time. Presumably, more detailed regulations will be forthcoming.
Also, if an employee has partial custody of a child under 18 – what are the guidelines on this? Whether the parent has partial or full custody (or no custody) of a child is not a factor in FMLA eligibility. If the parent is unable to work or telework because of a need to care for the son or daughter due to the child’s school or child care facility is unavailable, the parent is presumably eligible for leave under the FFCRA, regardless of the custody arrangement.
Is our office staff exempt also since the company is exempt in manufacturing steel, or does this only apply to production? It depends on the language of your local Stay at Home order. Sometimes essential business are exempt for all purposes; other times, if office staff can work from home, or if it is not critical for them to come in, you need to have them stay home.
Also, we are considered and essential business as we supply items to city-state-government agencies but with the order for us to stay at home how are we to handle this--I only have 15 employees--I cannot afford to pay them all at full or even 2/3 full for a month—Essential government functions are generally considered exempt under the Stay at Home orders, as are businesses that supply other essential businesses with products and services. Also, we do not interpret the FFCRA to require paid leave when employees cannot work due to a general government stay at home order (as opposed to a quarantine or isolation order affecting specific types of individuals who are positive for, or may have been exposed to, COVID-19). (Check out the SBA Disaster Loan. Free to apply. 30 year fixed. You can accept the loan amount they give you, accept only part, or turn them down. Recommend applying)
The expanded FMLA may not apply to Employers with less than 50 but does the same go for the Paid Sick Leave benefit? The employers over 500 was mentioned but not for under 50. Both provisions of the FFCRA apply to all employers with less than 500 employees. Employers with less than 50 employees must comply, unless they can document that compliance would threaten the existence of the business as a going concern. (DOL regs to come on this.)
Is it fair to assume that anyone that has ANY symptoms of flu virus (fever, achy body, etc.) is POTENTIALLY a case of Covid-19? With testing really not available, is this a fair assumption? Anyone is a potential case of Covid-19, because some people don’t exhibit symptoms at all, especially early on. In addition, many people with those symptoms do not in fact have Covid-19. However, it is generally fine to be even more vigilant than normal in asking employees with those symptoms to stay away from the workplace and to send them home if they display those symptoms at work.
Does the 2/3 pay include bonuses or only their regular hourly or salaried rate excluding bonuses? The “regular rate of pay” includes salary/regular hourly rate, commissions, tips, certain (non-discretionary) bonuses – and is calculated on a 6-month “look back” basis. DOL has issued FAQs on this.
Also on the SBA loans is this a one time application or if you see additional impacts later on can you apply a second time for an additional amount? It is a one time application. However, you can go back into your application and increase the amount that you want. The SBA will provide you a loan amount that you are approved for. You can assume all of the loan amount, part of the loan amount, or none of the loan amount.