Employer Update Regarding COVID Response, Compliance, and Stimulus Regulations

January 9, 2021

By Michael Burns, courtesy of SBAM Approved Partner ASE

If you have lost track of the legislative and regulatory ins and outs of the federal stimulus package and compliance regulations, here is where we are as of this week.

Michigan COVID Exposure Response Requirements

As cited in MMA Manufacturing Voice, the new Michigan law (SB 1258) states:

“Employees testing positive for COVID-19 may not report to work until a health care provider or public health profession advises them that they have completed their isolation period (currently 10 days or earlier depending on health care provider), or meets all of the following conditions:

24 hours fever-free without the use of fever-reducing medications, and
Symptoms have improved, and
The employee is no longer subject to a isolation advisement, and
The isolation period per CDC has passed.

An employee that is symptomatic but has not tested positive cannot return to work until they receive a negative test result or meet all the following conditions:

24 hours fever-free without the use of fever-reducing medications, and
Symptoms have improved, and
The isolation period per CDC has passed since symptoms began.

Employees who have been in close contact with someone who has tested positive may not report to work unless: Quarantine period per CDC has passed, or

The employee is advised by a health care provider or public health professional that they may return to work.

This legislation passed last month also adds as an affirmative defense for a civil action filed against an employer by an employee for non-compliance with requirements regarding quarantine and isolation. As an affirmative defense to liability in such an action, an employer could demonstrate that it was operating in compliance with CDC guidance and following all federal, state, and local requirements in effect.”

FFCRA Emergency Paid Sick Leave (EPSL) and Emergency Family Medical Leave (EFML)

As cited in HR Source:

“The FFCRA mandated benefits for COVID sickness and paid time off for various COVID related illness, care, and quarantining expired 12/31/2020. On December 27, 2020 President Trump reluctantly signed the COVID Relief Stimulus bill Consolidated Appropriations Act, 2021 (H.R. 133) that extends the credit for voluntary payment for those same reasons by employers to workers contingent upon certain requirements.

EPSL

The extension in the new bill does not reset the amount of time an employee may take or the tax credits an employer may claim for any one individual employee. So, if an employee has already used their allotted EPSL time prior to December 31, 2020, the employee would not have a new bucket of EPSL leave time after January 1, 2021. Accordingly, the employer may not claim added tax credits for employees that already used their EPSL prior to December 31st. If an employer decides to continue to supply leaves under FFCRA after the new year, an employee is entitled to use EPSL leave for a qualifying reason ONE time between April 2020 and March 31, 2021, and an employer is entitled to claim ONE tax credit per employee in that same period.

EFMLA

Contingent upon future guidance from the U.S. Department of Labor (DOL), an employee may be entitled to more time under the EFMLA depending on whether the employer uses a calendar year or rolling 12-month period with respect to calculating amount of available FMLA leave. (Meaning, an employer may be eligible for the tax credit for this leave time.) Employers who use a calendar year method for FMLA may have to provide employees with an added EFMLA qualifying paid leave through March 31, 2021.

Employers who use a rolling 12-month period for FMLA leave will have to continue using that rolling 12-month measure in figuring out how much paid leave they can provide and still receive the tax credit. An employer using the rolling method determines the available FMLA amount by measuring from the first date FMLA leave began. So, for example, if Employee A took FMLA on January 15, 2020 (for surgery), Employee A’s new FMLA calendar resets on January 15, 2021. Employee A would be entitled to use available FMLA time for childcare reasons under FFCRA from January 15, 2021, to March 31, 2021.
Employers should not change the way they calculate the 12-month FMLA leave year merely to try to maximize tax credits.
While the choice to continue to grant leave under the FFCRA is voluntary as of January 1, 2021, employers who choose to continue to claim tax credits should also continue to follow all DOL and IRS guidance to avoid claims of unlawful FFCRA denial, interference, and/or discrimination.

The new law means that employers must decide how they will address employees’ need for time off for COVID-19-related absences as of January 1, 2021. Employers may:

Continue to take part in the FFCRA through March 31, 2021 and claim the payroll tax credit for any additional leave taken.
Implement their own paid/unpaid sick and/or childcare-related family leave (tax credits would not be received under this choice). Employers would still have to meet obligations under the Americans with Disabilities Act (ADA), FMLA, and/or other state or local leave laws.

Rely on their existing employer-provided leave benefits. It should be noted that if current employer-provided leave is not sufficient or has been exhausted, this choice may result in the loss of employees due to their inability to meet their personal obligations and continue to work. It is advisable that employers continue to remain flexible and work with their employees to produce a mutually workable solution to address the continued need for time off due to COVID-19 exposure and/or schools not fully open to in-person teaching.”

Unemployment Programs Extended/Enhanced:

As cited in CAI Alert, federal updates include:

“Extension of Pandemic Unemployment Assistance:

This program provides those who have exhausted state benefits or who are ineligible (for example, independent contractors) with up to 50 weeks of benefits (increased from 39 weeks of benefits previously). The new law extends benefits until March 14, 2021. After March 14^th, new claimants will not be able to apply for benefits, but existing claimants’ benefits may continue through April 5^th.

Extension of Pandemic Emergency Unemployment Compensation Program:

This program is continuing under the new law. This means that those unemployed who exhaust state benefits will continue to receive benefits for an additional 24 weeks (this has been enhanced from the original 13 weeks). The new law extends benefits until March 14, 2021. After March 14^th, new claimants will not be able to apply for benefits, but existing claimants’ benefits may continue through April 5^th.

Potential “gap” week in benefits, and delays in payments:

Trump signed the bill on Sunday, December 27^th (Saturday was the final day to extend certain unemployment programs). Therefore, unemployed individuals may not receive unemployment benefits for the final week of the year.

Also, due to the bill being introduced late in the year, the states will likely need time to adjust their unemployment applications. This will potentially result in several weeks delay in benefits.

$300/week increase in unemployment benefits for 11 weeks: This law causes Federal Pandemic Unemployment Compensation under the CARES Act to be renewed at a lower level of $300 for weeks beginning after December 26, 2020. Due to the delay in signing, this program may last 10 weeks instead of the 11 outlined in the bill, as states cannot initiate the payments retroactively, and the program ends on March 14^th.

There is an additional $100 per week increase for the unemployed whose benefits do not take into account self-employment income.”

State updates:

The Governor failed to pass a complete state appropriations bill and her veto cancelled the temporary extension of unemployment benefits from 20 weeks to 26 weeks in Michigan.

The Governor vetoed a transfer of $220 million in Michigan General funds that was intended to alleviate some of the cost to employers for this extension of UI benefits.