City Employment Issues During COVID-19 Pandemic

Published: March 27, 2020

(Updated Jan. 7, 2021)

Note: The League is using the Centers for Disease Control and Prevention (CDC) and Minnesota Department of Health (MDH) to provide much of our guidance. We urge our member cities to keep checking the CDC and MDH websites for updates. Because this situation is rapidly evolving, the League encourages cities to work with their city attorney in implementing the new law and adapting any policies.

For policy samples and other guidance relating to COVID-19 employment related issues, contact HRBenefits@lmc.org.

Get answers to these FAQs about city employment issues and COVID-19:

Q1. In an effort to slow the COVID-19 spread, our city hall has closed. What happens to our employees’ pay and benefits? (Updated April 3, 2020)

Q2. What new state employment laws have been passed or amended in response to the COVID-19 pandemic that are applicable to cities? (Updated Jan. 7, 2021)

Q3. Can cities quarantine an employee who was in contact with someone who is awaiting COVID-19 test results? (Updated Dec. 7, 2020)

Q4. Can we terminate an employee who is not able to come to work due to COVID-19?

Q5. How do we protect public safety employees? (Updated Dec. 7, 2020)

Q6. For our operations crew and first responder employees, how many hours per day or per week can an employee work? (Updated July 30, 2020)

Q7. Are workers who contract or are exposed to COVID-19 eligible for workers’ compensation? (Updated April 21, 2020)

Q8. What about unemployment insurance benefits for our employees if their hours are reduced? What about paid on-call firefighters — are they covered?

Q9. How do OSHA regulations apply to remote workers? What about ergonomics? (Updated April 10, 2020)

Q10. What is the HR policy to address an employee that may have been exposed? Can a city require isolation? Or check workers’ temperatures? (Updated Dec. 16, 2020)

Q11. If an employee has been diagnosed with COVID-19, when can they return to work? (Updated Dec. 7, 2020)

Q12. How do cities process I-9s for new hires during the COVID pandemic? (Updated June 19, 2020)

Q13. What are the requirements of the new federal Families First Coronavirus Response Act? (Updated Dec. 28, 2020)

Q14. With the Stay at Home order by Gov. Walz, is that deemed a quarantine or isolation that allows employees to access Emergency Paid Sick Leave? (Updated April 3, 2020)

Q15. Can you please address how Emergency Paid Sick Leave might overlap with Public Health Emergency Leave? (Updated April 3, 2020)

Q16. For the Emergency Paid Sick Leave, the up to 80 hours is regardless of if the employee has accrued time available, correct?

Q17. Can an employee supplement with their own accrued leave to receive a full check in cases where they are receiving two-thirds pay under Public Health Emergency Leave or Emergency Paid Sick Leave? (Updated April 3, 2020)

Q18. Can an employee access Public Health Emergency Leave or Emergency Paid Sick Leave for care of a grandchild? (Updated July 30, 2020)

Q19. Can the paid FMLA Public Health Emergency Leave be used intermittently? (Updated Sept. 14, 2020)

Q20. If we have an employee on 14-day quarantine due to possible exposure, can they use the 80-hour FFCRA leave? Or is it better to use paid administrative leave? (Updated Dec. 7, 2020)

Q21. If schools are not open in person, but for distance learning, does the FFCRA cover employees who want or need to stay home with their children during the distance learning? (Updated August 28, 2020)

Q22. Are Public Health Emergency Leave and Emergency Paid Sick Leave paid benefits subject to Public Employees Retirement Association (PERA)? (Updated September 10, 2020)

Q23. Can an employee stay home under the FMLA expansion to avoid getting COVID-19? (Updated September 10, 2020)

Q24. I understand there will be some posting requirements related to FFCRA. What does that include? (Updated May 18, 2020)

Q25. Can you tell me more about the FFRCA health care providers and medical responders exemptions and why the exemptions exist? (Added April 3, 2020)

Q26. Is it an option to exclude Emergency Responders from the Public Health Emergency Leave, but not the Emergency Paid Sick Leave, or visa versa?  (Updated July 30, 2020)

Q27. If we exempt health care workers or emergency responders from the leave granted under the FFCRA, can they take other kinds of leave? (Updated September 10, 2020)

Q28. As an employer, how long do I need to retain documentation relating to FFCRA leaves? (Added September 10, 2020)

Q29. Is it true that all employers (including governments) are exempt from paying the employer’s share of the Social Security tax on wages paid under the FCCRA? (Updated April 10, 2020)

Q30. Do I need to keep employees on the city’s insurance while they are taking Public Health Emergency Leave or Emergency Paid Sick Leave? (Updated July 30, 2020)

Q31. Not necessarily a question, but a comment – there has been so many changes flying around, it’s hard to keep everything straight. (Added April 3, 2020)

Q32. We are a small city. Do we have to comply with the FFCRA? (Updated April 3, 2020)

Q33. What is the definition of “son or daughter” with regard to the FFCRA? (Updated April 3, 2020)

Q34. I heard something about possible administrative forbearance for public employees who are using the Public Service Loan Forgiveness (PSLF).  Where can I direct employees to learn more? (Added April 13, 2020)

Q35.  Should the city be offering COVID-19 antibody testing to emergency responders? (Added September 10, 2020)

Q36. Should we be tracking furloughed employees for work comp purposes? (Added May 26, 2020)

Q 37: What federal funding is available to help cities address additional or unbudgeted staffing costs that arise during the pandemic? (Updated July 8, 2020)

Q38.  Do employers have to pay employees for unauthorized telework hours? Do I have to pay employees for hours worked even when they do not report those hours? (Added July 30, 2020)

Q39. Can employees who are exempt from the FLSA’s overtime requirements under the executive, administrative and professional exemptions perform other nonexempt duties during the COVID-19 public health emergency and continue to be treated as exempt? (Added July 30, 2020)

Q40. Will telemedicine visits count as in-person visits to establish a serious health condition under the FMLA? (Added July 30, 2020)

 

Q1. In an effort to slow the COVID-19 spread, our city hall has closed. What happens to our employees’ pay and benefits?

A1. Generally, the League recommends cities be as flexible as possible with keeping workers in paid status, but every city has different resources and needs. Below are some options various cities are using:

  • Working from home. The April 1 Department of Labor guidance encourages employers to implement highly flexible telework arrangements that allow employees to perform work, potentially at unconventional times, while tending to family and other responsibilities, such as teaching children whose schools are closed for COVID-19 related reasons.
  • Allowing use of accrued leave balances (sick leave, vacation, compensatory time).
  • Catastrophic paid leave banks.
  • Allowing a negative sick leave balance (ranging from 80 to 120 hours) to be paid back when the employee returns to work.
  • Paid leave for a period of time, above and beyond normal accruals.
  • Redeploying employees to job duties they do not normally perform but are qualified to do, or using the time to work on “back-burner” projects.
  • Establishing alternating days or extra shifts to reduce the total number of employees in a facility at a given time to allow for social distancing.
  • Special provisions to keep the city’s health insurance contribution in place beyond the 12 weeks required by the Family and Medical Leave Act.
  • Also, see Question 13 below for information on mandated paid leave under the new federal Families First Coronavirus Response Act.

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Q2. What new state employment laws have been passed or amended in response to the COVID-19 pandemic that are applicable to cities?

A2. There has been a flurry of actions at the state and federal level taken to assist employees and employers with this situation. To date, these are the state actions and implications to local government employers (read about federal actions in Question 13).

Executive Order 21-01 — Protecting Recent Progress and Cautiously Resuming Certain Activities

On Jan. 6, 2021, Gov. Walz issued Executive Order No. 21-01 in response to Minnesota’s slow decrease in the COVID-19 virus trajectory. The CDC estimates the basic measure of wearing a face covering can reduce transmission risk by 70 to 80%, and when paired with consistent social distancing, virus transmission can be dramatically reduced, so mask and face coverings continue to be required. All people at risk of severe illness from COVID-19, are strongly urged to stay home and follow the provisions previously issued in Executive Order 20-55.

While indoor social gatherings continue to be strongly discouraged, indoor social gatherings involving not more than two households, up to a maximum of 10 people, are permitted as long as members of different households maintain at least 6 feet of separation from each other and adhere to additional precautions for social gatherings on the Stay Safe Minnesota website.

Additionally, with respect to workers and businesses specifically, Executive Order 21-01 includes the following:

  • Any workers who can work from home must continue to do so.
  • While the limits described below do not apply to legislative and other governmental meetings, Executive Order 21-01 reiterates a strong encouragement to conduct remote meetings whenever possible.
  • Any businesses in operation continue to be required to have a COVID-19 Preparedness Plan. Each plan must provide for the business’s implementation of guidance for their specific industry or, if there is not specific guidance, general guidance for all businesses as well as Minnesota Occupational Safety and Health Administration (OSHA) standards and MDH and CDC Guidelines in their workplaces.
  • Effective Jan. 10 at 11:59 p.m., venues hosting wedding receptions, private parties or other social gatherings may resume providing they meet certain operational criteria. These include developing and implementing a COVID-19 Preparedness Plan in accordance with applicable venue guidance available at the Stay Safe Minnesota website and:
    • Celebrations, receptions, private parties, and other gatherings offering food or beverages (including alcoholic beverages) for on-premises consumption are limited to two households or 10 people indoors and 3 households or 15 people outdoors.
    • No food or beverage service after 10 p.m.
    • Ensure at least 6 feet of separation between members of different households within the applicable 10 or 15 person limits noted above.
  • Effective Jan. 10 at 11:59 p.m., restaurants, bars, and other places of public accommodation offering dine-in food, beverages (including alcoholic beverages), or tobacco product services may provide indoor and outdoor services if they adhere to the applicable guidance on the Stay Safe Minnesota website, including that they have implemented a COVID-19 Preparedness Plan, and:
    • Occupancy of any indoor space must not exceed 50% of the normal occupant capacity, with a maximum of 150 people, provided that physical distancing of at least six feet is maintained between parties at different tables.
    • Occupancy of any outdoor space must ensure that the number of customers at any one time is limited to the number for whom physical distancing of six feet can be maintained between parties at different tables, not to exceed 150 people.
    • All establishments must ensure that no more than six customers are seated at one table.
    • In a bar area, no more than two customers may be seated together at any one time. Social distancing of 6 feet must be maintained between parties seated at bars or counters.
    • Reservations are required for onsite dining.
    • Establishments must close for on-premises consumption between the hours of 10 p.m. and 4 a.m. These hours restrictions do not apply to delivery service or window service. The executive order continues to encourage restaurants and bars to offer food and beverage using delivery services, window service, walk-up service, and drive-up service.
    • Local governments are encouraged to work collaboratively with establishments to allow for outdoor service.
  • Effective Jan. 10 at 11:59 p.m., public pools may be open in accordance with the guidance available on the Stay Safe Minnesota website and occupancy of public pool areas must not exceed 25% of the normal occupant capacity, not to exceed 150 people.
  • Effective Jan. 10 at 11:59 p.m., indoor gymnasiums, fitness centers, recreation centers, indoor sports facilities, climbing facilities, exercise facilities, martial arts facilities, and dance and exercise studios may be open in accordance with the applicable guidance available on the Stay Safe Minnesota website and:
    • Occupancy of any indoor space and the entire facility must not exceed 25% of the normal occupant capacity, not to exceed 150 people in the entire facility.
    • Physical distancing requirements must be maintained as set forth in the applicable guidance available on the Stay Safe Minnesota website.
    • Provided social distancing can be observed, class size is limited to 25 persons.
    • Face coverings must be worn by all persons at all times, except when participating in activities that would involve soaking or submerging a face covering in water, such as swimming or showering.
  • Effective Jan. 10 at 11:59 p.m., indoor event and entertainment venues like theaters, concert halls, museums, bowling alleys, and other similar establishments, may also be open in accordance with the guidance available on the Stay Safe Minnesota Website and:
    • Occupancy may not exceed 25% of normal capacity with a maximum of 150 people.
    • Physical distancing of at least 6 feet is maintained between participants from different households.
    • No food or beverage service may be offered after 10 p.m.
    • In addition to complying with relevant industry guidance on the Stay Safe Minnesota website, the business must ensure customers are seated when eating or drinking.
  • Effective Jan. 10 at 11:59 p.m., outdoor event and entertainment venues like racetracks, mini-golf, paintball, and amusement parks may also be open to the general public in accordance with the guidance available on the Stay Safe Minnesota Website and:
    • Occupancy may not exceed 25% of normal capacity with a maximum of 250 people.
    • No food or beverage service may be offered after 10 p.m.
    • In addition to complying with relevant industry guidance on the Stay Safe Minnesota website, the business must ensure customers are seated when eating or drinking.
  • Effective Jan. 10 at 11:59 p.m., practices are open for organized youth and adult sports organizations and programs subject to restrictions. Some restrictions are listed below and other details can be read in the Executive Order. Games resume January 14 with limited spectators according to appropriate venue capacity restrictions.
    • For indoor games, spectators are limited according to indoor venue guidance (25% capacity, up to 150).
    • For outdoor games, limits follow outdoor entertainment guidance (25% capacity, up to 250).
    • Inter-region tournaments and out of state play are discouraged.

Learn more from the Stay Safe Minnesota website

Executive Order 20-99 — Implementing a Four-Week Dial Back on Certain Activities to Slow the Spread of COVID-19

On Nov. 18, Gov. Walz issued Executive Order 20-99, which brought back some restrictions to slow the spread of COVID-19. On Dec. 16, this emergency order was extended and modified with Executive Order 20-103, which was effective Dec. 19, 2020, through Jan. 10, 2021.

Minnesota’s rate of “community spread” has been critically concerning, with the state remaining well within the White House Coronavirus Task Force’s “Red Zone” thresholds for test positivity rates and cases per 100,000 residents. To address the associated mounting health care crisis, the extended and modified order placed restrictions on social activities, in-person dining, and sports and fitness establishments. With respect to workers and businesses, Executive Order 20-103 included the following:

  • Requirements for masks and face coverings in certain settings remain in full force and effect. Refer to Executive Order 20-81 referenced below.
  • Any workers who can work from home must continue do so.
  • While indoor social gatherings are strongly discouraged, indoor social gatherings involving not more than two households, up to a maximum of 10 people, are permitted as long as members of different households maintain at least 6 feet of separation from each other and adhere to additional precautions for social gatherings on the Stay Safe Minnesota website. Since outside environments are relatively less risky, outdoor social gatherings involving not more than three households, up to a maximum of 15 people, are permitted as long as members of different households maintain at least 6 feet of separation from each other, and participants adhere to additional precautions for social gatherings on the Stay Safe Minnesota website. Organizers of prohibited social gatherings may be subject to appropriate enforcement action by city, county, and/or state authorities.
  • While the limits described below do not apply to legislative and other governmental meetings, the previous Executive Order 20-99 strongly encouraged remote meetings whenever possible.
  • Restaurants, bars, and other places of public accommodation offering dine-in food, beverages (including alcoholic beverages), or tobacco product services were closed to public occupancy since Nov. 20 at 11:59 p.m., but beginning Saturday, Dec. 19, could provide outdoor services if they adhere to the applicable guidance on the Stay Safe Minnesota website, including that they have implemented a COVID-19 Preparedness Plan, and:
    • Ensure physical distancing of at least 6 feet is maintained between parties at different tables.
    • Ensure no more than four customers are seated at one table.
    • Be closed and remain closed each day for outdoor on-premises consumption between 10 p.m. and 4:00 a.m. Again, inside dining of food and beverages remains prohibited through Jan. 10, 2021.
    • In the event of inclement weather, customers may move indoors to package food and pay bills but must exit quickly. While indoors, customers must maintain physical distancing of 6 feet between households and avoid congregating.
  • Restaurants and bars can, and are encouraged to, offer food and beverage using delivery services, window service, walk-up service, and drive-up service. There is a limit of up to five members of the public at one time in an establishment when picking up food or beverage orders. Again, these businesses must continue to follow the requirements set forth for all businesses since June 29, 2020, in industry-specific guidance noted later in this section (and available on the Stay Safe Minnesota website), including having and implementing a COVID-19 Preparedness Plan.
  • Venues and businesses providing indoor events and entertainment (whether permanent, temporary, or mobile) must not host celebrations, receptions, private parties, or other social gatherings from Nov. 20 at 11:59 p.m. through Jan. 10, 2021.
  • Public pools, theaters, museums, concert halls, stadiums, arcades, bowling alleys,  trampoline parks, and party buses remain closed through Jan. 10, 2021.
  • Gymnasiums, fitness centers, recreation centers, and exercise studios may be open for individual exercise in accordance with the applicable guidance available on the Stay Safe Minnesota website and the following requirements are met:
    • Occupancy of any indoor space and the entire facility must not exceed 25 percent of the normal occupant capacity as determined by the fire marshal, not to exceed 100 people in the entire facility.
    • Physical distancing of at least 12 feet is maintained in any area that one or more persons are exercising. Physical distancing of at least 6 feet must be maintained in all other situations.
    • Again, face coverings must be worn at all times. For additional guidance on face covering requirements, refer to Executive Order 20-81 below.
  • Venues providing outdoor events and entertainment (whether permanent, temporary, or mobile) such as racetracks, paintball, go-karts, mini-golf, performance venues, festivals, fairs, vendor fairs, and amusement parks may be open in accordance with the applicable guidance available on the Stay Safe Minnesota website and meeting the following requirements:
    • Ensure physical distancing of at least 6 feet is maintained between participants from different households. Venues may not exceed 25% capacity, with a maximum of 100 people.
    • If food or beverages are offered for on-premises consumption outside or that permits food or beverages to be consumed outside on premises, there can be no food or beverages offered between the hours of 10 p.m. and 4 a.m. daily.
    • Compliance with relevant industry guidance available on the Stay Safe Minnesota website including ensuring customers are seated when consuming food and beverage outside.
    • These outdoor venues are encouraged to offer “drive-in” or “drive-thru” experiences, provided all participants remain within their own vehicles and follow the applicable guidance available at the Stay Safe Minnesota website. Keep in mind, drive-in and drive- thru experiences are not subject to the capacity limits referenced above.
  • Organized youth sports organizations and programs must stop all in-person activities, including practices, group workout and tournaments from Dec. 18 at 11:59 p.m. through Jan. 3, 2021, at 11:59 p.m. There are provisions for permitted outdoor workouts, practices, training and skill-building provided the activities do not involve spectators, participants from more than three households and more than one coach or instructor. Physical distancing of at least 6 feet must be maintained between members of different households at all times. A group of up to three households and a coach or instructor must maintain at least 12 feet of physical distancing from other groups. All participants must follow the Outdoor Recreation Guidelines. After Jan. 3, 2021 at 11:59 pm, the organized youth sports organizations and programs intending to operate must do so in accordance with applicable guidance for youth sports available on the Stay Safe Minnesota website, including distribution of required COVID-19 Preparedness Plans.
  • Organized adult sports organizations and programs must cease all in-person activities, including practices, group workouts, games, and tournaments from Dec. 18 at 11:59 p.m. through Jan. 3, 2021, at 11:59 p.m. There are provisions for permitted outdoor workouts, practices, training and skill-building provided the activities do not involve spectators, participants from more than three households and more than one coach or instructor. Physical distancing of at least 6 feet must be maintained between members of different households at all times. A group of up to three households and a coach or instructor must maintain at least 12 feet of physical distancing from other groups. All participants must follow the Outdoor Recreation Guidelines. After Jan. 3, 2021, at 11:59 pm, the organized adult sports organizations and programs intending to operate must do so in accordance with applicable guidance for adult sports available on the Stay Safe Minnesota website, including distribution of required COVID-19 Preparedness Plans.
  • Any businesses in operation continue to be required to have a COVID-19 Preparedness Plan. Each plan must provide for the business’s implementation of guidance for their specific industry or, if there is not specific guidance, general guidance for all businesses as well as Minnesota Occupational Safety and Health Administration (OSHA) standards and MDH and CDC Guidelines in their workplaces.

Get more guidance from the Stay Safe Minnesota website

Executive Order 20-81 — Requiring Minnesotans to Wear a Face Covering in Certain Settings to Prevent the Spread of COVID-19

In July 2020, Gov. Walz issued Executive Order 20-81 requiring face coverings. Beginning on July 25, Minnesotans are required to wear a face covering (which can include a paper or disposable face mask, a cloth face mask, a scarf, a bandanna, a neck gaiter, or a religious face covering) to cover the nose and mouth completely in indoor businesses and indoor public settings, including when waiting outdoors to enter an indoor business or public indoor space. Workers must also wear face coverings outdoors when it is not possible to maintain social distancing.

As Executive Order 20-81 notes, mandatory face coverings may be temporarily removed in some of these situations (please refer to the executive order for a comprehensive list):

  • When participating in organized sports in an indoor business or indoor public space while the level of exertion makes it difficult to wear a face covering.
  • When exercising in an indoor business or public indoor space such as a gym or fitness center, while the level of exertion makes it difficult to wear a face covering, provided that social distancing is always maintained.
  • When testifying, speaking, or performing in an indoor business or public indoor space, in situations or settings such as theaters, news conferences, legal proceedings, governmental meetings subject to the Open Meeting Law, presentations, or lectures, provided that social distancing is always maintained. Face shields should be considered as an alternative in these situations.
  • During activities, such as swimming or showering, where the face covering will get wet.
  • When eating or drinking in an indoor business or indoor public space, provided that at least six feet of physical distance is maintained between persons who are not members of the same party.
  • When asked to remove a face covering to verify an identity for lawful purposes.
  • While communicating with an individual who is deaf or hearing impaired or has a disability, medical condition, or mental health condition that makes communication with that individual while wearing a face covering difficult, provided that social distancing is maintained to the extent possible between persons who are not members of the same household.
  • When an individual is alone, including when alone in an office, a room, a cubicle with walls that are higher than face level when social distancing is maintained, a vehicle, or the cab of heavy equipment or machinery, or an enclosed work area. In such situations, the individual should still carry a face covering to be prepared for person-to-person interactions and to be used when no longer alone.
  • When a public safety worker is actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, in situations where wearing a face covering would seriously interfere in the performance of their public safety responsibilities.

All businesses (including cities) will need to update their COVID-19 Preparedness Plans to include the face covering requirements and inform their workers how their plan has been updated.

Read more about return-to-work guidance

Businesses (including cities) must post one or more signs visible to all persons — including workers, customers, and visitors — instructing them to wear face coverings as required by Executive Order 20-81.

When possible, businesses must provide accommodations to persons, including their workers and customers, who state they have a medical condition, mental health condition, or disability that makes it unreasonable for the person to maintain a face covering, such as permitting use of an alternate form of face covering (e.g., face shield) or providing service options that do not require a customer to enter the business.

Executive Order 20-81 does not require businesses or their workers to enforce the face mask requirement when it is unsafe to do so, or authorizes them to restrain, assault or physically remove workers or customers who refuse to comply.  Violations for willful violations are outlined in the Executive Order.

Executive orders on unemployment insurance

On March 16, 2020, Gov. Walz issued Executive Order 20-05 to ensure workers affected by the COVID-19 pandemic have full access to unemployment benefits. The executive order makes applicants eligible for unemployment benefits if:

  • A health care professional or health authority recommended or ordered them to avoid contact with others.
  • They have been ordered not to come to their workplace due to an outbreak of a communicable disease.
  • They have received notification from a school district, daycare, or other child care provider that either classes are canceled or the applicant’s ordinary child care is unavailable, provided that the applicant made reasonable effort to obtain other child care and requested time off or other accommodation from the employer and no reasonable accommodation was available.

On April 6, 2020, Emergency Executive Order 20-29 was issued requiring employers to notify separated employees about the availability of unemployment insurance benefits; it also suspends enforcement of Minnesota statutes that would typically delay unemployment benefits for those employees receiving vacation, sick, or personal time off. We believe this is an attempt to minimize any lags between when an employer stops paying and when the previous workers would begin receiving unemployment benefits. Minnesota law requires employers to display several informational posters in a physical location where their employees can easily see them. The posters provide safety, wage and age-discrimination information. A pdf version of the unemployment insurance informational poster is available below for downloading & printing.

The Unemployment Insurance poster must be displayed in a prominent place at the worksite. Select from the links below to view, download or print a poster:

The complete set of required state posters is available from the Minnesota Department of Labor and Industry (DLI). There is no cost for the posters and they can be printed from the DLI website or ordered as a packet that will be sent to you by mail.

Providing an employee the information from this poster (whether in a special communication or by displaying the poster in a physical workspace) would meet the notice requirement.

Additionally, it is our understanding under the federal CARES Act, the federal government will forgive 50% of reimbursing employer unemployment insurance costs, for at least some of the benefits mandated by the federal government through Dec. 31, 2020. (Many cities are reimbursing employers and pay the full costs of unemployment benefits when they occur vs. insurance premium payments to the state.) For purposes of estimating unemployment costs, this means reimbursing employers would owe the trust fund approximately 25% of the employee’s regular wages, when those employees access the state’s unemployment insurance benefits.

The State’s Unemployment Insurance team at the Department of Employment and Economic Development (DEED) is working through how this reimbursement will be implemented for cities’ unemployment costs, and these FAQs will be updated when that guidance is available, But presently, their efforts are focused on paying Minnesotans out of work.

DEED was able to provide this update on May 18, 2020:

“Under the CARES Act, the federal government is directly funding the $600 additional weekly benefit, the 13-week extended benefit program, and the Pandemic Unemployment Assistance (PUA) program for self-employed people and other workers who are not eligible for regular UI. Employers will not be charged for these benefits.

The federal government will also be reimbursing the state for certain other costs, including the first week of regular UI benefits (what would’ve ordinarily been the “waiting week”). We will be able to take steps to relieve employer charges once that federal reimbursement process is complete.

The CARES Act also created a relatively complex process for providing additional financial relief to reimbursing employers for their UI costs. We recently received federal guidance on that process, which we are still reviewing.

We will update our web site (and can follow up with the League of Minnesota Cities) as we have more information. We expect to provide more information before Q2 benefits paid charges come due.

Please DO NOT raise an issue just to let us know you have been charged for UI benefits. We will review your account for possible financial relief automatically.

You can still raise an issue to tell us you think someone is ineligible for benefits.”

DEED provided the following updates in August 2020 for reimbursing employers:

  • Under current law, unemployment benefits chargeable to reimbursing employers (including cities) for qualified claims will be reduced by federal dollars at a rate of 50%.
    • The federal government is paying for some benefits fully and directly (i.e., PUA and the PEUC extension). DEED is not charging reimbursing employers for these.
    • The federal government is paying for some benefits partially and directly (i.e., Extended Benefits paid to an employee of a political subdivision). DEED is not charging reimbursing employers for the federally paid portion.
    • The federal government will reimburse the states for other benefits (i.e., waiting week payments).
  • The original CARES Act legislation specified that employers would pay their unemployment obligation in full and then, upon MNUI receiving federal CARES Act funds, MNUI would issue a refund (corresponding to the 50% paid by the federal government). DEED recognized that requiring employers to submit a full payment to DEED (and then wait for the state to process a refund) would be burdensome for public-sector organizations, so the state has requested that Congress take action to simplify the billing process for UI programs and offer broader relief for reimbursing employers.
    • A bill was passed in early August allowing for a different funding mechanism. Rather than reimbursing employers paying their amount due in full, the new legislation allows for MNUI to apply federal CARES Act funds first (and simply bill the employer for the remaining balance).
  • MNUI is currently awaiting guidance from the US Department of Labor on implementation of this new legislation, while also working through several other federal reimbursement processes. MNUI is also monitoring possible additional changes to federal law. One example is that there is an amendment under consideration that will increase the federal funding of qualified unemployment claims from 50% to 75%. MNUI will adjust its processes accordingly as these decisions are made.
  • Given the ongoing debate in Congress, as well as the extremely large number of people currently applying for unemployment benefits, reimbursing employers may not get a final answer on their outstanding obligation for a bit longer. In the meantime, MNUI has suspended invoicing for benefit charges from first and second quarters in 2020 and (also suspended applicable penalties and interest). This is a good thing for cities, as it frees up cash flow and simplifies the process. DEED is not asking reimbursing employers to pay anything for the first and second quarters of 2020 until they can figure this out. No late penalties or interest will accrue on these quarters. To that end, many reimbursing employers received a letter regarding additional information related to unemployment insurance for the first and second quarters of 2020 unemployment billing.
    • Some cities received UI invoices for the first and second quarter of 2020. Reimbursing employer cities should have also received a follow-up letter explaining these invoices are on hold pending application of federal CARES Act funds allocated to unemployment expenses. Cities that elected the taxpaying method likely were also invoiced but will follow a slightly different process for financial relief.
    • MNUI is aware of the deadline of November 15, 2020 cities face to use their CARES funds and understands that some may wish to apply local CARES funds to remaining balances. MNUI is working diligently to process CARES Act funding information as quickly as possible.

Learn more about state Unemployment Insurance & COVID

Unfortunately, there have been cases of reported unemployment fraud. DEED has clarified there has been no DEED or UI data breach, and provides the following guidance for individuals who notice something improper:

  • File a police report – this is identity theft.
  • Check their credit report – again, this is identity theft and bad actors may have applied for many forms of credit and programs.
  • Notify the UI office – Individuals can notify the UI office and they will follow up.

Access DEED’s new fraud reporting page

DEED officials note that they work in coordination with local law enforcement on fraud issues.

Stay-at-Home executive order

On March 25, 2020, Gov. Walz ordered Minnesotans to stay at home for two weeks (until April 10) to slow the spread of COVID-19. This was extended until May 4, 2020 in Executive Order 20-33, and until May 18 in Executive Order No. 20-48.

Read FAQs about the Stay at Home order and how it affects cities

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Q3. Can cities quarantine an employee who was in contact with someone who is awaiting COVID-19 test results?

A3. Generally speaking, a city would want to rely on a medical provider to classify whether an employee is on quarantine. Under state health law, if an employee has contracted or been exposed to COVID-19, the MDH can recommend the employee isolate themselves. Employees who are diagnosed with COVID-19 should follow guidance from public health officials and their doctor before being released from isolation and thus returning to work. Employers have an obligation (under OSHA) to keep their workplaces safe, and the Department of Labor states an employer may encourage, or require, employees to telework as an infection-control or prevention strategy, provided the employer is not singling out employees on a basis prohibited by any of the Equal Opportunity Employment laws. Furthermore, in Governor Walz’s executive orders (most recently Executive Order 20-99) it is noted any workers who can work from home must do so. In the absence of an order by a health care provider to self-quarantine, and in the event the position simply is not one that can work remotely, employers should encourage employees who are ill with COVID-19 symptoms or are exposed to ill family members to stay home. Employers should also consider flexible leave policies for their employees in these circumstances and review federal guidance to determine whether employees would qualify for emergency paid sick leave (under the Families First Coronavirus Response Act) or for unemployment. MDH Guidance has been updated for employees who have experienced a COVID-19 exposure but are experiencing no symptoms. Please see question #10 below.

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Q4. Can we terminate an employee who is not able to come to work due to COVID-19?

A4. Cities are strongly cautioned against terminating employees due to their inability to work during the COVID-19 pandemic. In addition to all of the normal employment protections (e.g., civil rights laws, collective bargaining agreements, the Americans with Disabilities Act), there are additional employee protections such as Minnesota Statutes, section 144.4196. This law provides protections for employees quarantined for up to 21 days.

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Q5. How do we protect public safety employees?

A5. MDH, the Occupational Safety and Health Administration (OSHA), and CDC offer guidance.

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Q6. For our operations crew and first responder employees, how many hours per day or per week can an employee work?

A6. Federal or state law does not limit the number of hours per day or week that employees aged 18 or older can be required to work. OSHA in the past has offered some helpful tips to consider when scheduling employees for longer hours. The DOL also reiterated this in FAQ #5 of the COVID-19 FLSA FAQs, noting the FLSA does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.

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Q7. Are workers who contract or are exposed to COVID-19 eligible for workers’ compensation?

A7. There is no coverage for exposure to a disease under Minnesota’s workers’ compensation law, but individuals may be eligible for workers’ compensation benefits if they contract COVID-19. There’s also a new state law for injuries occurring on or after April 8, 2020, that provides a presumption for COVID-19 workers’ compensation claims, which applies to employees and volunteers working in certain occupations. Please see Insurance Trust Coverage Response During COVID-19 Pandemic for more information.

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Q8. What about unemployment insurance benefits for our employees if their hours are reduced? What about paid on-call firefighters — are they covered?

A8. In addition to the special pandemic-related changes to unemployment insurance listed in Question 2 above, most city employees (including paid on-call firefighters) may be eligible for unemployment insurance benefits if their hours are reduced, as long as they are not receiving paid leave equivalent to their normal rate of pay.

When a person submits an application for unemployment benefits, the Unemployment Insurance Program uses the wages of ALL employers in the applicant’s base period (with a few exceptions). Therefore, paid on-call firefighters may be eligible for compensation on both their full-time job wages and the paid on-call wages.

The Minnesota Department of Employment and Economic Development (DEED) has asked that employees use the website to file for benefits.

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Q9. How do OSHA regulations apply to remote workers? What about ergonomics?

A9. The Department of Labor’s Occupational Safety and Health Administration (OSHA) does not have any regulations regarding telework in home offices. The agency issued a directive in February 2000 stating that the agency will not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees. With respect to ergonomic issues, the League of Minnesota Cities Insurance Trust has field representatives you can consult. You can reach them at (651) 281-1200 or (800) 925-1122.

Read about simple ergonomics tips when working from home in the LMC Pipeline blog

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Q10. What is the HR policy to address an employee that may have been exposed? Can a city require isolation? Or check workers’ temperatures?

A10, Part A: Employee exhibiting COVID-19 like symptoms

If a worker is exhibiting symptoms leading you to believe a positive diagnosis for COVID-19 is likely, you will want to:

  • Send the employee home promptly and also ask the employee to identify all individuals he or she was in close proximity to (within 6 feet). The CDC updated its guidance in late October to broaden the definition of close contact to a cumulative total of 15 minutes or more over a 24-hour period starting from two days before illness onset (or, for asymptomatic patients, two days prior to test specimen collection).  The CDC advises most employers to send home any employees who have had a risk of exposure under this analysis. Those employees should maintain social distancing and self-monitor for 14 days from the exposure.

For another resource to get the most up-to-date CDC and MDH guidance on COVID-19 protocols for Minnesota, call the Minnesota COVID-19 Hotline at (651) 201-3920.

The CDC also notes that infected people can spread the virus 48 hours before the onset of symptoms. In the event a worker calls in to the city to notify the city he or she tested positive for COVID-19, a city will also want to work through the above analysis to determine whether the employee has been working in close proximity with other city workers recently. While the city will want to consult with their city attorney and call the Minnesota COVID-19 Hotline at (651) 201-3920 for the most current guidance, it is our understanding those close proximity workers will then be sent home by the city in an effort to stop the spread of infection in the workplace.

Cities will want to keep in mind, in accordance with the Minnesota Government Data Practices Act and Americans with Disabilities Act, the city cannot identify the infected worker’s name (unless the infected worker voluntarily agrees to sign a waiver for the city to share his or her diagnosis), and the city must safeguard any associated medical documentation the city possesses as part of this process to ensure others cannot access the protected information. In the EEOC’s Guidance on COVID-19 and the Americans with Disabilities Act (ADA), question B.5 notes that using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. The EEOC adds, for small employers, co-workers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. In addition to the guidance from the Minnesota COVID-19 hotline, cities can also consult the MDH website for COVID-19 Guidance for Businesses and Employers. This guidance includes staying home until 14 days after last exposure based on the time it takes to develop illness, maintaining social distance from others, and self-monitoring for symptoms (i.e., checking temperature twice a day to watch for fever, cough, or shortness of breath). Employers should not require a sick employee to provide a negative COVID-19 test result or healthcare provider’s note to return to work.

  • See outline of CDC cleaning protocols; please refer to the shaded box labeled “Cleaning and disinfecting your building or facility if someone is sick.”
  • Make sure you are properly compensating employees who are sent home. If you need information regarding how to compensate your employees who are sent home or ill with COVID-19, please see Q&As #1#13#15#17#20#25#26#27#30 of these FAQs.

Additionally, if you are seeking any assistance interpreting industry guidance the state offers regarding COVID-19 protocol, you can also contact DEED at (651) 259-7114 or email the state at deed.customerservice@state.mn.us.

A10, Part B: COVID-19 exposures

On Dec. 7, the state of Minnesota released two additional options to lessen self-quarantine periods for situations where a person is symptom free who had close contact with a person with COVID-19.  Please note the Minnesota Department of Health notes the safest option is to stay home and away from others for 14 days.   As the MDH December 7 guidance states, in certain situations, a self-quarantine may end after 10 days or after seven days with a negative COVID-19 test:

  • 10 days – Provided a person remains symptom free, no one in the home has COVID-19/the person does not reside in a building with others, the person wears a mask correctly, remains six feet away from other people and watches for symptoms through day 14, the self-quarantine period can be reduced to 10 days.
  • 7 days – Provided a person remains symptom free, the person tests at least five full days following close contact with someone with COVID-19 and the test is negative, no one in the home has COVID-19/the person does not reside in a building with others, the person wears a mask correctly, remains six feet away from other people and watches for symptoms through day 14, the self-quarantine period can be reduced to 7 days. As the MDH website notes, a quarantine period cannot end before seven days for any reason.

Get additional quarantine guidance for people who are a contact of a COVID-19 case

A10, Part C: Critical infrastructure workers

At the end of November, the MDH issued guidance for employees in critical infrastructure businesses like public utilities and law enforcement, for workplace contact tracing for employee exposure to COVID-19. The MDH advises, people with COVID-19 can give the disease to others from two days before developing symptoms until 10 days after their first symptoms. Therefore, contact tracing should include co-workers who were exposed to a worker with confirmed COVID-19 beginning two days before the person’s symptoms started (or, for workers without symptoms, two days before their test date) until the time the case was isolated at home away from others. The MDH outlines situations, including images showing scenarios for contact tracing in the workplace.

See the MDH Contact Tracing Guidelines for Critical Infrastructure Businesses

For critical infrastructure employees who have been quarantined due to exposure, MDH offers the following guidance:

Fourteen days is the standard length of time to quarantine at home after contact with someone (in the workplace or elsewhere) who has tested positive for COVID-19. However, MDH guidance does permit workers in critical infrastructure sectors to continue working after exposure to a confirmed case of COVID-19 if their absence would create staffing shortages, they follow COVID-19-prevention protocols, and they remain symptom-free. MDH specifically recommends that critical infrastructure industries adopt one of the following quarantine strategies to better control disease spread in the workplace while providing for workforce needs:

  • Strategy 1: Employees should quarantine at home for a minimum of 10 days and get tested on day seven. If the COVID-19 test is negative and the employee does not develop symptoms, they may return to work on day 11.
  • Strategy 2: Employees should quarantine at home for a minimum of seven days and get tested on day five. If the COVID-19 test is negative and the employee does not develop symptoms, they may return to work on day 8. This strategy should only be adopted in facilities with severe staffing shortages.
  • Strategy 3: Employees should quarantine at home for 10 days. If symptoms develop, the employee should get tested and remain home until results are available. If the employee does not develop symptoms, they may return to work on day 11, without any restrictions; no medical exam or testing is required. This is a fallback strategy for critical infrastructure when testing is limited.

With respect to testing costs, to the extent that the employee incurs any medical costs for testing, the employer is most likely responsible for those costs. Cities will want to work with their city attorneys if they have questions about payment issues.

Both CDC and MDH further advise that if the critical infrastructure worker becomes sick during the day, the employee should be sent home immediately. Surfaces in their workspace should be cleaned and disinfected.  The city will want to compile a list of anyone the worker was in contact with within two days prior to the worker being symptomatic but maintain confidentiality as required by the Americans with Disabilities Act (ADA).

For more information see the CDCs interim guidance for businesses and employers

Under state health law, if an employee has contracted or been exposed to COVID-19, the MDH can recommend the employee isolate themselves. As addressed in Question 4 above, Minnesota law protects employees who are absent for up to 21 workdays because of isolation or quarantine. See Minnesota Statutes, section 144.4196 for more information. Employers have an obligation (under OSHA) to keep their workplaces safe; during a pandemic, employers should err on the side of sending sick employees home.

A10, Part D: OSHA logging for COVID-19 in the workplace

OSHA recently issued new guidance in June on how to investigate and record COVID-19 cases among your workforce. Minnesota OSHA (MNOSHA) Compliance follows federal OSHA record-keeping guidance, which is used across the country and needs to be consistent for national data comparison, with the exception that in Minnesota, low-hazard industries are also required to record injuries and illnesses.

See OSHA’s Revised Enforcement Guidance for Recording Cases of COVID-19

MNOSHA Compliance will enforce the record-keeping requirements of 29 CFR Part 1904 for all employers with employee COVID-19 illnesses. Recording a COVID-19 illness does not, of itself, mean the employer has violated any OSHA standard. And, pursuant to existing regulations, employers with 10 or fewer employees have no recording obligations; they need only report work-related COVID-19 illnesses that result in a fatality and report any employee’s in-patient hospitalization.

OSHA record-keeping requirements now mandate that COVID-19 is a recordable illness, and employers should record cases in their OSHA 300 log if all of the following conditions are fulfilled:

  1. The case is a confirmed diagnosis of COVID-19 as defined by the CDC.
  2. The case is “work-related,” which in OSHA regulations means that an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.
  3. The case involves one or more of the general recording criteria specified by OSHA regulations, which are cases that involve one or more of the following: death, days away from work, restricted work, transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed health care professional.

For additional assistance regarding OSHA reporting, please contact your League of Minnesota Cities Insurance Trust loss control representative.

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Q11. If an employee has been diagnosed with COVID-19, when can they return to work?

A11. Thus far, we have been recommending following MDH guidelines: Employees should notify their supervisor and stay home if they are sick. See CDC Guidance for Businesses.

Per the MDH website, a person with COVID-19 needs to remain at home until all three of the following are true:

  • The person feels better, with cough, shortness of breath, or other symptoms better as well.
  • It has been 10 days since the person first felt sick.
  • The person has no fever for at least 24 hours, without using fever reducing medications.

Based on CDC guidelines, we are suggesting employers NOT require a return to work statement from a doctor to allow medical providers to concentrate on treating those with COVID-19; additionally, it is unlikely the employee will be able to obtain one.

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Q12. How do cities process I-9s for new hires during the COVID pandemic?

A12. Employers can implement a Form I-9 remote document if city offices are closed and staff are working remotely, however, you must follow the guidelines set by the federal government. This includes:

  • Providing each new hire with the city’s telework policy and maintaining evidence this requirement was met.
  • Review documents remotely (e.g., over video link, fax, or email etc.).
    • Note that for drivers’ licenses that may have expired due to closure of Driver and Vehicle Services offices, the U.S. Immigration and Customs Enforcement offers a related FAQ that includes this information about documents and expiration dates: “Because many areas are under stay-at-home orders due to COVID-19 and some online renewal services have restrictions, employees may experience challenges renewing a state driver’s license, a state ID card, or other Form I-9, Employment Eligibility Verification, List B identity document. Considering these circumstances, DHS is issuing a temporary policy regarding expired List B identity documents used to complete Form I-9, Employment Eligibility Verification. Beginning on May 1, identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes. Under this temporary policy the expired List B document can be valid for more than 90 days. When your employee provides an acceptable expired List B document that has not been extended by the issuing authority you should: Record the document information in Section 2 under List B, as applicable; and,Enter the word “COVID-19” in the Additional Information Field.Within 90 days after DHS’s termination of this temporary policy, the employee will be required to present a valid unexpired document to replace the expired document presented when they were initially hired. Note:  It is best if the employee can present the replacement of the actual document that was expired, but if necessary, the employee may choose to present a different List A or List B document or documents and record the new document information in the Additional Information Field.When the employee later presents an unexpired document, you should:In the Section 2 Additional Information field:
      • Record the number and other required document information from the actual document presented;
      • Initial and date the change.

      Procedure for List B Documents extended by an Issuing Authority

      If the employee’s List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date due to COVID-19, the document is acceptable as a List B document for Form I-9 (not as a receipt) during the extension timeframe specified by the issuing authority.

      When your employee provides an acceptable expired List B document that has been extended by the issuing authority you should:

      Enter the document’s expiration date in Section 2; and,

      Enter “COVID-19 EXT” in the Additional Information Field.

      Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has extended the documents.  Employers can confirm that their state has auto-extended the expiration date of state IDs and driver’s licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicles’ website.

      Note:  For extended documents, the employee is not required to later present a valid unexpired List B document.

      E-Verify participating employers should use the employee’s expired List B document number from Section 2 of the Form I-9 to create an E-Verify case as usual within three days of the date of hire.

      DHS continues to monitor the ongoing COVID-19 national emergency and will provide updated guidance as needed.”

  • Review original documents within three days of resuming normal operations.
  • Once physical inspection takes place after normal operations resume, “documents physically examined” should be included in “Additional Information” field of Section 2.

Learn more from the Department of Homeland Security’s website

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Q13. What are the requirements of the new federal Families First Coronavirus Response Act (FFCRA)?

A13. The new law (H.R. 6201) impacts employers in two key respects: it requires Emergency Family and Medical Leave Act (FMLA) leave be provided to qualifying employees and requires that Emergency Paid Sick Leave be offered to an employee who is unable to work due to specific impacts of COVID-19. The law took effect on April 1 and is scheduled to sunset on Dec. 31, 2020, as the law is meant to specifically address concerns around COVID-19.

NOTE: Congress passed a $900 billion pandemic relief package on Dec. 21, 2020, that went to President Donald Trump for his signature, which he signed on Dec. 27, 2020. The COVID-19 sick leave and Public Health Emergency leave provisions from FFCRA were not extended in the package — thus the mandatory FFCRA leave will expire at the end of 2020.

On Sept. 11, 2020, the DOL clarified FFCRA paid leave is only available if there is available work by the employer.  Thus, an employee cannot take FFCRA paid leave if the employer would not have had work for the employee to perform (such as in the case where a city closed down the worksite — temporarily or permanently).

It is important to note, regardless of how much accrued leave an employee has through their employer, eligible employees can take any and all Public Health Emergency and Emergency Paid Sick Leaves they are entitled to (as noted below).

The DOL Sept. 11 guidance noted required documentation (see sample forms provided under Public Health Emergency Leave and Emergency Paid Sick leave below) supporting the need for the leaves need not be given prior to taking paid sick leave or expanded family and medical leave, but rather may be given as soon as practicable.  As an example, if the need for expanded family and medical leave was not foreseeable — for instance, if an employee learns of the school’s closure on Tuesday after reporting for work — the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.

See the DOL’s Guidance (pdf)

Emergency Family and Medical Leave (FMLA) Expansion Act

The Public Health Emergency Leave is an amendment to the FMLA, providing a new category for eligible full-time and part-time employees. All political subdivisions of the state, regardless of size, must comply. Employers may, however, exclude employees who are health care providers or emergency responders. This eligibility for a specific circumstance is a notable change from the “traditional” FMLA. Under traditional FMLA, generally speaking, provisions do not apply to employers with fewer than 50 employees, whereas Public Health Emergency Leave applies to all cities.

Question #49 of the DOL’s FFCRA FAQs clarifies that the Emergency Family and Medical Leave Expansion Act does not distinguish between full- and part-time employees, but the number of hours an employee normally works each week affects the amount of pay the employee is eligible to receive.

This portion of the bill amends the FMLA by granting up to 12 weeks of job-protected leave to employees to care for children because school has been closed or they are without child care, due to a public health emergency. While the first two weeks of this up to 12 week benefit are unpaid, the remaining 10 weeks under this benefit would be paid at two-thirds the employee’s regular rate of pay when an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. (Refer to Question #15 below for information on the interplay of Emergency Paid Sick Leave with Public Health Emergency Leave.) A “public health emergency” is defined to mean “an emergency with respect to COVID-19 declared by a federal, state, or local authority.” Thus, the Public Health Emergency Leave does not increase the total number of FMLA weeks an employee has available; it is still 12 weeks, but the act simply adds a new category of leave for employees to access. Recall only the expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons, is paid leave when such leave exceeds 10 days.

Employees who have been employed for at least 30 calendar days are eligible for this specific expanded family medical leave. The April 1 DOL guidance reiterates this different eligibility criteria is solely for the Public Health Emergency Leave, reiterating “not all employees who are eligible to take expanded family and medical leave will be eligible to take FMLA leave for other reasons .” An employee is considered to have been employed for at least 30 calendar days if an employee has been on the city’s payroll for the 30 calendar days immediately prior to the day the leave begins. The DOL FFCRA FAQs provide the following example to illustrate the 30 days: If an employee wants to take leave on April 1, 2020, that employee would need to have been on the city’s payroll as of March 2, 2020. In the event a city has a temporary employee who is subsequently hired as a full-time employee, the city will want to count days the employee worked as a temporary employee toward the 30-day eligibility period.

In the April 1 DOL guidance, eligibility for Public Health Emergency Leave was expanded to employees who were laid off or otherwise terminated on or after March 1, 2020, provided:

  • The employer rehires or otherwise reemploys the employee on or before Dec. 31, 2020, and
  • The employee has been on the city’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or terminated.

The act provides leave for employees who are unable to work (or telework) because they need to care for a son or daughter whose:

  • School or place of care has been closed, or
  • Child care provider is unavailable due to a public health emergency.

A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. To count the hours worked by a part time employee, the DOL FFCRA FAQs state an employer will calculate hours of leave based on the number of hours the employee is normally scheduled to work. In other words, a part-time employee is entitled to leave for his or her average number of work hours in a two-week period.  However, if the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period and may take expanded Family and Medical Leave for the same number of hours per day up to 10 weeks after that.

FAQ #5 of the DOL FFCRA FAQs provides further guidance stating, if this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, the April 1 DOL guidance states an employer will use the average number of hours per workday the employee was scheduled to work over the entire period of employment, including hours for which the employee took leave of any type.

Typically, an employer is not required to provide paid leave under traditional FMLA; however, for Public Health Emergency Leave, only the first two weeks of such leave may be unpaid. The April 1 DOL guidance affirms that the unpaid period for employees who work regular Monday through Friday schedules would be 10 days because that is the number of days they would work in two weeks. However, the following 10 weeks must be paid at no less than two-thirds the regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work. To reiterate, this specific type of leave is taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

Employees may elect to substitute any accrued vacation leave or sick leave for the initial two weeks of unpaid leave, but an employer may not require an employee to substitute any such leave. In some cases, such as when an employee is caring for their child whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 related reasons, employees may elect to overlap the initial two weeks of unpaid leave with two weeks covered by the new Emergency Paid Sick Leave, so the cap would be subject to $200 per day or $12,000 for the 12 weeks when the employee is on leave to care for their child.

The Public Health Emergency Leave requires an employer to pay an employee, using the regular rate of pay, for hours the employee would have been normally scheduled to work. For purposes of the FFCRA, the regular rate of pay is the average of an employee’s regular rate over a period of up to six months prior to the date on which the leave begins. The DOL, in its April 1 guidance, notes such an average should be weighted by the number of hours worked each workweek and provides an example on page 32 of the guidance.

For some employees, the regular rate of pay may include overtime. Because there are circumstances when both the Public Health Emergency Leave and Emergency Paid Sick Leave would be in play (such as for when school or child care is closed due to COVID-19 and the employee needs to care for children), it’s important to be mindful of the daily and aggregate caps. Recall under the Emergency Paid Sick Leave Act, sick leave may be paid only up to 80 hours over a two-week period. The DOL FFCRA FAQs note in FAQ #6, as an example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week, and states in any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80. However, that pay under either does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.

The April 1 DOL guidance notes FFCRA regulations do not require employers to provide employees requesting to use Public Health Emergency Leave with notices of eligibility, rights and responsibilities, or a written designation that leave use counts against employee’s FMLA leave allowances.  As a best practice, cities may want to develop notices for this leave to comport with their “traditional” FMLA practices.

The DOL FAQs provided guidance (in questions 15-16) on what documentation employers can use to substantiate the need for Public Health Emergency Leave, including a notice of closure or unavailability from a child’s school or child care provider, such as a notice posted on a government, school or day care website, as well as a notice published in a newspaper or e-mailed to the employee from a school official or child care provider.

On June 26, 2020, the DOL issued a Field Assistance Bulletin (2020-4) clarifying eligibility for paid sick or expanded FMLA under the FFCRA based on the closure of summer camps, summer enrichment programs, or other summer programs. The Field Assistance Bulletin states, “An employee who requests leave to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program is subject to the same requirements described above [for school closures] and should provide the name of the specific summer camp or program that would have been the place of care for the child had it not closed. 29 C.F.R. § 826.100(e)(2).” There must be some indication that the child would have attended the summer program had it not closed in response to COVID-19.

There is an exception to the job protection provisions for employers with fewer than 25 employees if the employee’s position does not exist after Public Health Emergency Leave due to an economic downturn or other operating conditions that affect employment caused by the COVID-19 pandemic, but specific conditions must be met.

See page 54 of the April 1 DOL guidance for these requirements.  Additionally, the “key” employee exception under “traditional” FMLA is applicable to leave taken under Public Health Emergency Leave.  See information beginning on page 11 of the League’s FMLA memo for additional details on key employees.

The DOL, in its April 1 guidance, notes for leave taken under “traditional” FMLA for an employee’s own serious health condition related to COVID-19, or to care for the employee’s own spouse, son or daughter, or parent with a serious health condition related to COIVD-19, the “traditional”  FMLA certification requirements still apply. However, cities will want to be mindful that during the COVID-19 pandemic, medical documentation from providers may be difficult to obtain.

Employers of health care providers or emergency responders may elect to exclude such employees from this leave. (Refer to Question #25 below for additional information.)

In FAQ #15 of the FFCRA FAQs, the DOL notes regardless of whether an employer grants or denies a request for Public Health Emergency Leave certain information must be documented.  To that end, the League has provided some sample model forms to gather the needed information.

Emergency Paid Sick Leave Act

Subject to a few exceptions, all public agencies must provide their eligible employees with Emergency Paid Sick Leave. Further, section 5110 of the FFCRA states the term “covered employer” in the emergency sick leave provisions apply to” public agency[ies] or any other entity that is not a private entity or individual, employs one or more employees.”

This provision of the act requires applicable employers (like cities) to provide employees with a maximum of two weeks of paid sick leave (paid at the full regular rate) for employees who are unable to work or telework because they need to:

  • Quarantine. Documentation an employee could provide to the city in support of paid sick leave would include the name of the government entity issuing the quarantine or isolation the employee is subject to (in this case Governor Walz’s Stay at Home Executive Order) or the name of the health care provider who advised the employee to self-quarantine for COVID-19 related reasons. In the April 1 DOL guidance, it was clarified that if the employer has closed, and there is no available work for the employee, then Emergency Paid Sick Leave would not be appropriate (because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order). In those cases, an employee would file for unemployment since there no work available.  The guidance further states, if an employee is subject to a quarantine or isolation order, but the employer permits the employee to telework and there are no extenuating circumstances preventing the employee from performing that work, that employee is ineligible for Emergency Paid Sick Leave (due to the fact they are teleworking).
  • Seek a diagnosis or preventive care for coronavirus. The April 1 DOL guidance states Emergency Paid Sick Leave for this reason is limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis (i.e., the time spent making, waiting for, or attending an appointment for a test for COVID-19), but specifies the employee may not take Emergency Paid Sick Leave to self-quarantine without seeking a medical diagnosis.  The guidance further notes in the case of an employee who exhibited COVID-19 symptoms and seeks medical advice but is told he or she does not meet the criteria for testing and is advised to self-quarantine, that employee is generally eligible for Emergency Paid Sick Leave.

In these circumstances, there is a cap of $511/day or $5,110 total over the entire two-week paid sick leave period.

However, two-thirds of the employee’s regular rate must be paid to:

  • Care for a family member who has been quarantined or advised by a health care provider to self-quarantine. The April 1 DOL guidance states 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 due to the quarantine. Documentation an employee would provide to the city in support of paid sick leave for this situation could include the name of the government entity that issued the quarantine or isolation the employee is subject to (in this case Governor Walz’s Stay at Home Executive Order), or the name of the health care provider who advised the employee to self-quarantine for COVID-19 related reasons.
  • Care for a child whose school has closed or whose child care provider is unavailable due to the coronavirus. The April 1 DOL guidance clarifies if an employer does not have available work (e.g., if the place of employment is closed and the employee cannot telework), an employee may not take paid sick leave. In that case, the employee could file for unemployment. The guidance further clarifies Emergency Paid Sick Leave is only for the period when the employee needs to, and actually is, caring for his or her child. Stating, “generally, an employee does not need to take Emergency Paid Sick Leave if another suitable individual – such as a co-parent, co-guardian, or the usual child care provider – is available to provide the care for the employee’s child needs.” Also, in the case of a 15- to 17-year old child, the employee must identify “special circumstances” requiring the employee to provide care. Documentation an employee would provide to the city in support of this Emergency Paid Sick Leave situation would include: (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
  • Tend to any other substantially similar condition that may arise, as specified by the Secretary of Health and Human Services (as of the date of these FAQs, this situation is not in play).

In these circumstances, there is a cap of $200/day or $2,000 total over the entire two-week paid sick leave period.

In the event your city has opted to provide any of these leaves to your employees, the authority for sick leave and other related benefits should satisfy the public purpose doctrine for these expenditures. Minnesota courts have held that the “public purpose” doctrine should be “broadly construed to comport with the changing conditions of modern life.” Short Co. v. City of Minneapolis, 269 N.W.2d 331 (Minn. 1978).  In addition, remember that the state auditor emphasizes the importance of governing bodies to accurately record pay and benefit decisions in your meeting minutes.

Emergency Paid Sick Leave is a benefit for all eligible employees for up to 80 hours of paid sick time, regardless of the employee’s length of employment. Full-time employees are entitled to two weeks (80 hours) of paid sick time and part-time employees (defined under question #49 of the DOL’s FFCRA FAQs as an employee who is normally scheduled to work fewer than 40 hours per week), are entitled to paid sick time based on the number of hours equal to the average number of hours that the employee normally works in a two-week period.

In the April 1 DOL guidance, employers are directed to use the daily average a variable scheduled employee works to compute the two-week average.  Thus, employers will want to take the number of hours the variable scheduled employee was scheduled per calendar day, averaged over the past six-month period prior to the date on which the leave begins. Alternatively, an employer may also use twice the number of hours that an employee was scheduled to work per workweek, averaged over the six-month period.  The calculation will yield Emergency Paid Sick Leave for a variable employee equal to 14 times the average number of hours the employee was scheduled to work per calendar day (including any vacation, PTO, or sick leave hours the employee used) over the six-month period ending on the date on which the employee takes paid sick leave.

The Department of Labor’s April 1 guidance states if this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

Any unused paid leave granted by the act does not carry over into 2021.

Employers of health care providers or emergency responders may elect to exclude such employees from this leave. (Refer to Question #25 below for additional information.)

In FAQ #15 of the FFCRA FAQs, the DOL notes regardless of whether an employer grants or denies a request for Emergency Paid Sick Leave certain information must be documented.  To that end, the League has provided some sample model forms to gather the needed information.

View LMC model form: Request for Emergency Paid Sick Leave (doc)

Health insurance and FFCRA

In FAQ #30 of the DOL’s FFCRA FAQs, it is stated that if an employer provides group coverage that an employee using FFCRA leave has elected, that employee is entitled to continued group health coverage during the expanded family and medical leave and/or Emergency Paid Sick leave on the same terms as if the employee continued to work. See also FAQ #30 of this web page.

Reimbursement

As passed, the Families First Coronavirus Response Act implements significant mandates on local governments as employers to provide expanded leave to employees, but unfortunately, language in the bill expressly prohibits government employers from receiving the tax credits to offset the costs of providing such leave.

A concerted effort by the National League of Cities and the League of Minnesota Cities to amend this language in the more recently passed CARES Act (third COVID-19 stimulus package) was not successful. As a result, the language in the Families First Coronavirus Response Act (PL 116-127) remains and governmental employers are prohibited from receiving any benefit of the payroll tax credits for providing paid sick and paid emergency family leave. We are aware of efforts at the federal level to continue to attempt to fix this issue should there be any further COVID-19 stimulus packages. Because this is in flux, might be a good idea to start tracking as of April 1 any paid leave benefits granted under this act.  Some cities are considering coding any leave under this act as a specific code in their payroll systems so they can more easily generate a report if needed down the line. For further information about the tax credits available to private employers, please visit the IRS’ Coronavirus Tax Relief page.

In summary:

  • Government employers are not eligible for the credit for qualified sick and family leave wages. (See Form 941 instructions, page 9)
  • Government employers are not liable for the employer share of social security tax on qualified sick leave wages.
  • FFCRA wages may be eligible expenses for reimbursement using CARES Act funds. (Refer to Coronavirus Relief Act Guidance Updated June 30, 2020 at the top of page 4)

More resources

2020 Form W-2 reporting FFCRA wages

The FFCRA went into effect on April 2 and is currently scheduled to sunset on Dec. 31, 2020.  Two divisions of the act apply to local governments: The Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

Lisa Sova, League of Minnesota Cities Assistant Finance Director — Outreach specifically checked in with the IRS to inquire if cities are subject to reporting FFCRA on W-2 forms. The response was that employers with one or more employee are considered “covered employers” by statute and the notice applies to all covered employers.

The IRS provides guidance on the reporting requirements of FFCRA wages either on Form W-2 or on a separate statement.  Employers will be required to report all FFCRA payments by leave type when preparing 2020 W-2 forms.

Employers must separately state the total amount of:

  • Qualified sick leave wages.
  • Qualified family leave wages.
  • Emergency Family and Medical Leave wages.

There are two options for reporting:

  1. Box 14 on the 2020 Form W-2; or
  2. A separate statement provided to employees with the 2020 Form W-2.

The following model language (modified as necessary) may be used:

“Included in Box 14, if applicable, are amounts paid to you as qualified sick leave wages or qualified family leave wages under the Families First Coronavirus Response Act. Specifically, up to three types of paid qualified sick leave wages or qualified family leave wages are reported in Box 14:

  • Sick leave wages subject to the $511 per day limit because of care you required.
  • Sick leave wages subject to the $200 per day limit because of care you provided to another.
  • Emergency family leave wages.

“If you have self-employment income in addition to wages paid by your employer, and you intend to claim any qualified sick leave or qualified family leave equivalent credits, you must report the qualified sick leave or qualified family leave wages on Form 7202, Credits for Sick Leave and Family Leave for Certain Self-Employed Individuals, included with your income tax return and reduce (but not below zero) any qualified sick leave or qualified family leave equivalent credits by the amount of these qualified leave wages. If you have self-employment income, you should refer to the instructions for your individual income tax return for more information.”

If a separate statement is provided and the employee receives a paper Form W-2, then the statement must be included with the Form W-2 provided to the employee, and if the employee receives an electronic Form W-2, then the statement shall be provided in the same manner and at the same time as the Form W-2.

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Q14. With the Stay at Home order by Gov. Walz, is that deemed a quarantine or isolation that allows employees to access Emergency Paid Sick Leave?

A14. Very likely, but the city will want to make an initial determination whether there is available work for the employee. Essentially, an employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking.

Specifically, in the April 1 DOL guidance, it was clarified that if an employer has closed, and there is no available work for the employee, then Emergency Paid Sick Leave would not be appropriate (because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order).  In those cases, an employee would file for unemployment due to no available work.  The guidance further states, if an employee is subject to a quarantine or isolation order, but the employer permits the employee to telework, and there are no extenuating circumstances preventing the employee from performing that work, that employee is ineligible for Emergency Paid Sick Leave (due to that fact they are working via teleworking).

For reference, in the April 1 DOL guidance, there is language stating, “quarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.”  Essentially, an employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking

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Q15. Can you please address how Emergency Paid Sick Leave might overlap with Public Health Emergency Leave?

A15. The Public Health Emergency Leave only applies if an employee is unable to work (or telework) due to the need to care for a child if the child’s school, or child care provider is closed due to a public health emergency (like that of COVID-19). If that situation is in play for your employee and the employee has worked for you for the eligibility criteria outlined in question #13 (whereas the Emergency Paid Sick Leave is immediately available to employees), then the employee is eligible for up to 12 weeks of FMLA leave (assuming they have not already previously used any FML time within your defined 12-month period). Ten of those weeks will be paid at two-thirds the rate of the employee’s regular pay, and the first two weeks of that leave are unpaid. Employee can elect to use their accrued employer provided leave balances for the first two weeks (which arguably may be paid at the employee’s full rate of pay), can elect to use up to 80 hours of Emergency Paid Leave or take those two weeks as unpaid. For the case of an employee caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19, they would be eligible for up to two weeks of Emergency Paid Sick Leave paid at two-thirds their regular rate of pay, up to a cap of $200/day ($10,000 in the aggregate, or no more than $12,000 in the aggregate when combined with two weeks of the Emergency Paid Sick Leave).

In the event an employee has exhausted his or her 12 weeks of “traditional” FMLA or the 12 weeks of  Public Health Emergency Leave, (and assuming the employee has not already used the two weeks of Emergency Paid Sick Leave) the April 1 DOL guidance reiterates the employee may still be eligible for the two weeks of Emergency Paid Leave for a COVID-19 qualifying reason.

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Q16. For the Emergency Paid Sick Leave, the up to 80 hours is regardless of if the employee has accrued time available, correct?

A16. Yes, the Emergency Paid Sick Leave is in addition to any accrued banks of leave the employee may currently possess. Further, the act includes an express provision that an employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time.

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Q17. Can an employee supplement with their own accrued leave to receive a full check in cases where they are receiving two-thirds pay under Public Health Emergency Leave or Emergency Paid Sick Leave?

A17. We tend to think so, but this election is at the employee’s choice and the employer cannot require an employee to supplement the FFCRA leaves.  In question #32 of earlier DOL guidance, the DOL stated, “Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid or exceeds the limits set forth under Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.”  However, it is important to note, the Act currently expressly prohibits government employers from receiving the tax credits to offset the costs of providing such leave. (See question #13 above for additional information).

The DOL offers guidance specifically on supplementing Public Health Emergency Leave in their April 1 guidance, noting an employee may take the first two weeks of Public Health Emergency Leave as unpaid, elect to take Emergency Paid Sick Leave at two-thirds the employee’s regular rate of pay, or use his or her accrued leave through the employer.   After the first two weeks of leave, Public Health Emergency Leave is paid at two-thirds an eligible employee’s regular rate of pay, up to $200 per day.  Because this period of Public Health Emergency Leave is paid, the DOL notes on page 110 of its April 1 guidance, the “traditional” FMLA provision for substitution of the employee’s accrued paid leave is inapplicable, and neither the eligible employee nor the employer may require the substitution of paid leave. However, cities and eligible employees may agree, to have paid leave supplement pay under the Public Health Emergency Leave so that the Employee receives the full amount of his or her normal pay.

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Q18. Can an employee access Public Health Emergency Leave or Emergency Paid Sick Leave for care of a grandchild?

A18. Possibly, if the employee was considered “in loco parentis” for the child.  In DOL’s FFCRA FAQs, the definition of son or daughter includes an employee’s biological, adopted, or foster child, stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child. For additional information regarding “in loco parentis” please refer to Fact Sheet #28B where it states, “In loco parentis refers to a relationship in which a person puts himself or herself in the situation of a parent by assuming and discharging the obligations of a parent to a child. The in loco parentis relationship exists when an individual intends to take on the role of a parent to a child who is under 18 or 18 years of age or older and incapable of self-care because of a mental or physical disability. Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA, as long as the relative satisfies the in loco parentis requirements.”

In the April 1 DOL guidance, under both Public Health Emergency and Emergency Paid Sick Leaves,  the definition of child is mirrored and includes children under 18 years of age as well as children age 18 or older who are incapable of self-care because of a mental or physical disability. See also Q33 on this web page.

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Q19. Can the paid leaves under the FFCRA be used intermittently?

A19. Generally, yes, provided the employer and employee are in agreement. The DOL’s April 1 guidance, reiterates this with no leave under the FFCRA may be taken intermittently without agreement by both the employer and employee.  In earlier DOL Q&As, the Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs. The Department notes that it is supportive of such voluntary arrangements that combine telework and intermittent leave.  In the April 1 DOL guidance, it is noted that providing this intermittent leave flexibility during the COVID-19 pandemic should not be construed as undermining the employee’s exempt status under the FLSA. On Sept. 11, the DOL affirmed that where intermittent FFCRA leave is permitted, an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave

While the April 1 DOL guidance noted a written agreement outlining both parties’ agreement is not required, it is noted there needs to be clear and mutual understanding between the parties that the employee may take intermittent paid sick leave or intermittent expanded family and medical leave, or both. Further, where an employer and employee agree to the intermittent leave, there needs to be agreement on the increments of time in which leave may be taken.  Thus, cities may want to talk with their legal counsel on how best to document any intermittent arrangement.

The Sept. 11 DOL guidance also noted employer approval would not be required for employees taking FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis. The DOL clarified, in an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The employee may take leave due to a school closure until that qualifying reason ends (e.g., the school opened the next day), and then take leave again when a new qualifying reason arises (e.g., school closes again the day after that). Under the FFCRA, intermittent leave is not needed because the school literally closes (as that term is used in the FFCRA and 29 CFR 826.20) and opens repeatedly. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person.

However, the DOL notes, the above scenario differs from a scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under this specific circumstance, the employee’s FFCRA leave is intermittent and would indeed require his or her employer’s agreement.

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Q20. If we have an employee on 14-day quarantine due to possible exposure, can they use the 80-hour FFCRA leave? Or is it better to use paid administrative leave?

A20. As of April 1 and through Dec. 31, 2020, if the employee has been advised by a health care provider to self-quarantine related to COVID-19, then that is a qualifying reason for up to 80 hours of Emergency Paid Sick Leave at their regular rate, up to $511 per day and $5,110 in the aggregate. Prior to April 1, the city would follow its typical paid leave policies. 

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Q21. If schools are not open in person, but for distance learning, does the FFCRA cover employees who want or need to stay home with their children during the distance learning?

A21. On August 27, 2020, the DOL provided FAQs noting that eligible employees can take paid leave under the FFCRA on days when the child is not permitted to attend school in person and must instead engage in distance learning, provided the employee needs the leave to actually care for the child during that time and only if no other suitable person is available for the care. However, FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If an employee’s child is home not because his or her school is closed, but because the employee chose for the child to remain home, the employee is not entitled to FFCRA paid leave. However, if, because of COVID-19, the employee’s child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid leave to care for the child. See also FAQ #13 for additional information on FFCRA and related sample model forms.

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Q22. Are Public Health Emergency Leave and Emergency Paid Sick Leave paid benefits subject to Public Employees Retirement Association (PERA)?

A22. League staff spoke with PERA on March 26 and confirmed that both the emergency FMLA and Paid Sick Leave are PERA reportable. Further, pay issued under FFCRA is eligible for pension deductions as long as it is associated with a specific pay period (i.e., bi-weekly, etc.). Visit PERA’s COVID-19 Q&A web page.

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Q23. Can an employee stay home under the FMLA expansion to avoid getting COVID-19?

A23. The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Generally speaking, leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA. Employers should encourage employees who are ill with pandemic influenza or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.

If a city finds itself in a position where an employee expresses fears working due to COVID-19 concerns, a conversation with the city attorney is vital to balance employee rights and city business needs. Generally speaking, a city will want to engage in an interactive process to better understand the employee’s specific concerns, and as with any accommodation request, the EEOC notes in question D.6 of its Guidance on COVID-19 and the Americans with Disabilities Act (ADA) employers may: ask questions to determine whether the condition is a disability; how the disability creates a limitation, how the requested accommodation will effectively address the limitation, whether another form of accommodation could effectively address the issue; and how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties). For further information, refer to Employment Accommodations During COVID-19.

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Q24. I understand there will be some posting requirements related to FFCRA. What does that include?

A24. Cities will want to post this notice of the FFCRA requirements by March 31 in a conspicuous place at your premises, but employers can satisfy this requirement by emailing or direct mailing this notice to employees or posting it on an employee information internal or external website. You may notice, there are two posters on the DOL workplace posters website; cities will want to post and share the non-federal employees, “Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under the Families First Coronavirus Response Act” (WHD1422 REV 03/20) poster. Cities are not required to post this notice in multiple languages, but the Department of Labor (Department) has issued a Spanish language version of the poster.  Additionally, the Department of Labor offers some notice FAQs you may want to read.

Notably, if have new hires you must convey this notice to them either by email, direct mail, or by posting this notice on the premises or on an employee information internal or external website.

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Q25. Can you tell me more about the FFRCA health care providers and medical responders exemptions and why the exemptions exist?

A25. Employers of health care providers or emergency responders may elect to exclude such employees from the Public Health Emergency and Emergency Paid Sick Leaves. In question #57 of the DOL’s FFCRA FAQs, the DOL defines emergency responders who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, as an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. (Refer to additional content regarding the health care providers and emergency responders exclusion under Public Health Emergency Leave section.)

In the April 1 DOL guidance, this exclusion was explained as a balance struck by the FFCRA. “On the one hand, the FFCRA provides for paid sick leave and expanded family and medical leave so employees will not be forced to choose between their paychecks and the individual and public health measures necessary to combat COVID-19. On the other hand, providing paid sick leave or expanded family and medical leave does not come at the expense of fully staffing the necessary functions of society, including the functions of emergency responders. The FFRCA should be read to complement—and not detract from—the work being done on the front lines to treat COVID-19 patients, prevent the spread of COVID-19, and simultaneously keep Americans safe and with access to essential services. Therefore, the Department interprets ‘emergency responder’ broadly.”

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Q26. Is it an option to exclude Emergency Responders from the Public Health Emergency Leave, but not the Emergency Paid Sick Leave, or visa versa?

A26. Yes.  In FAQ #57 of the FFCRA FAQs , the DOL encourages, to minimize the spread of the virus associated with COVID-19, employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA. Noting, as an example, an employer may decide to exempt these employees from leave for caring for a family member but choose to provide them paid sick leave in the case of their own COVID-19 illness. Previously, the League consulted with a local benefits attorney and understood that given the fact that the two types of leave are governed by different laws and each law separately gives an employer the ability to exclude emergency responders, it seemed like the answer was yes, a city could exclude emergency responders from one leave and not the other, or exclude emergency responders from both leaves. Now it is confirmed by the DOL that a a city could exclude emergency responders from being eligible for Public Health Emergency Leave but allow them to receive Emergency Paid Sick Leave.

In the event an emergency responder contracts COVID-19 and falls under the presumption for COVID-19 workers’ compensation claims, the DOL notes in FFCRA FAQ #76 that such employee would not generally be eligible for Emergency Paid Sick Leave (even if the city did not choose to exclude emergency responders from the EPSL benefit) unless the employee was able to return to light duty before taking leave. The DOL notes, “If you receive workers’ compensation or temporary disability benefits because you are unable to work, you may not take paid sick leave or expanded family and medical leave. However, if you were able to return to light duty and a qualifying reason prevents you from working, you may take paid sick leave or expanded family and medical leave, as the situation warrants.”

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Q27. If we exempt health care workers or emergency responders from the leave granted under the FFCRA, can they take other kinds of leave?

A27. Yes, an employer’s exercise of this option does not authorize an employer to prevent an employee who is a health care provider or emergency responder from taking earned or accrued leave in accordance with established employer policies. Therefore, the city may be required to grant other forms of paid leave, depending on the circumstances of the employee’s request. Consult your city attorney for clarification.

Cities will want to be mindful that the ADA and Rehabilitation Act applies to emergency responders. In question D.12, the EEOC notes the CDC classification of “critical infrastructure workers” or “essential critical workers” does not eliminate coverage under the ADA or the Rehabilitation Act, or any other equal employment opportunity law. Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee. Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship.  For additional information on accommodating employees under the COVID-19 pandemic, refer to Employment Accommodations During COVID-19.

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Q28. As an employer, how long do I need to retain documentation relating to FFCRA leaves?

A28. Four years. Specifically, an employer is required to retain all documentation for four years, regardless of whether leave was granted or denied. In the DOL’s April 1 guidance, it is noted if an employee provides oral statements to support his or her request for Emergency Paid Sick Leave or Public Health Emergency Leave, the employer is required to document and retain such information for four years. Keep in mind the ADA and MN Data Practices laws, require any associated medical documentation the city possesses be safeguarded to ensure others cannot access the protected information.

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Q29. Is it true that all employers (including governments) are exempt from paying the employer’s share of the social security tax on wages paid under the FFCRA?

A29. Yes. Local governments are not allowed to use the tax credits, but the employer portion (equivalent to 6.2%) of the OASDI tax imposed by Section 3111(a) of the Code, which is also known as the social security tax, is exempted. (However, the employee portion of the social security tax is not exempted.) We have verified that payments made to employees taking paid leave pursuant to the FFCRA are not subject to the employer portion of the OASDI tax imposed by Section 3111(a) of the IRS Code (i.e., the 6.2%), which is also known as the social security tax. Unlike the “tax credit” section of the act, this particular section does not include an exclusion for governmental employers; therefore, the rule applies to all types of employers, including governmental employers. See also IRS FAQ 10 (IRS COVID-19 FAQs), which confirms that qualified Emergency Paid Sick Leave and qualified Public Health Emergency Leave payments are exempt from the employer portion (6.2%) of the social security tax.

At a minimum, government employers are going to need to document and track these qualified sick and family leave wages separately, in order to: a) not withhold the employer portion of social security (assuming software/system can handle not withholding employer only portion) and/or b) report the correct wages subject to employer portion of social security, most likely on the quarterly Form 941, although the IRS has not yet provided any information on this.

Any regular sick, vacation, or PTO used would be taxed as it normally is taxed because it isn’t considered qualified sick and family leave.

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Q30. Do I need to keep employees on the city’s insurance while they are taking Public Health Emergency Leave or Emergency Paid Sick Leave?

A30. Yes, employees are entitled to continued coverage under the employer’s group health plan on the same terms as if the employee did not take leave during the period of absence covered by the law. For additional information about health plan continuation under FMLA, please refer to the League’s FMLA memo. See also Q13 on this web page.

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Q31. Not necessarily a question, but a comment – there have been so many changes flying around, it’s hard to keep everything straight.

A31. We completely agree! There is good news; the Department of Labor will observe a temporary period of non-enforcement for the first 30 days, so long as the employer has acted reasonably and in good faith to comply with the Act. Learn more about the non-enforcement period.

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Q32. We are a small city. Do we have to comply with the FFCRA?

A32. Yes, municipalities must comply with both the Public Health Emergency and Emergency Paid Leaves, regardless of the number of employees they employ, although such employers may exclude employees who are health care providers or emergency responders.

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Q33. What is the definition of “son or daughter” with regard to the FFCRA?

A33. The DOL regulations define son or daughter the same way for both Public Health Emergency and Emergency Paid Leaves. See also Q18 on this webpage. This definition includes children under 18 years of age and children age 18 or older who are incapable of self-care because of a mental or physical disability. However, the IRS noted that if employees wish to take leave under Public Health Emergency Leave or Emergency Paid Sick Leave, the employee alone must be providing care to the child (thus, if another family member is present to care of the child, then the employee would not qualify for the leaves under the FFCRA).

Additionally, in the case of a 15- to 17-year old child, the employee must identify “special circumstances” requiring the employee to provide care. This IRS guidance appears to relate to tax-credits which local governments are not currently eligible for, but it may be a good idea to include on your forms in the event cities are eligible for this credit down the line.

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Q34. I heard something about possible administrative forbearance for public employees who are using the Public Service Loan Forgiveness (PSLF).  Where can I direct employees to learn more?

A34. The U.S. Department of Education has directed all federal student loan servicers to temporarily stop requiring payments (a forbearance) from any borrower with a federally held loan. If you have a Direct Loan, were on a qualifying repayment plan prior to the suspension, and work full-time for a qualifying employer during the suspension, then you will receive credit toward PSLF for the period of suspension as though you made on-time monthly payments. Servicers of federal student loans were directed to place borrowers in an automatic forbearance. To request a forbearance/stop payment/refund, borrowers should contact their federal student loan servicer online or by phone.

—Learn more and find out who your federal student loan servicer is

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Q35.  Should the city be offering COVID-19 antibody testing to emergency responders?

A35.  As of April 21, 2020, despite companies currently offering such testing, none of the antibody tests are approved by the FDA. The CDC in its Interim Guidelines states antibody test results “should not be used to make decisions about returning persons to the workplace.” Further, it is presently unclear even if an individual has antibodies for COVID-19, how long they will last. Thus, in the absence of an FDA-approved test, it is not currently recommended to offer this testing to employees.

The CDC website indicates that the CDC is evaluating commercially manufactured serologic tests in collaboration with various agencies.

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Q36. Should we be tracking furloughed employees for work comp purposes?

A36. Yes, it is beneficial for cities to track because the payroll allocated to paid furloughed employees during the COVID-19 pandemic will be excluded on the payroll audit for all new, renewal, and outstanding policies, effective on or after March 1, 2020. Read more about tracking furloughed employees for work comp premium purposes.

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Q 37: What federal funding is available to help cities address additional or unbudgeted staffing costs that arise during the pandemic?

A37: The Coronavirus Relief Fund may provide cities with unbudgeted COVID-19 costs with money distributed by the Minnesota Department of Revenue. Funding can be used to meet payroll expenses for the following categories of public employees:

  • Public safety.
  • Public
  • Health care.
  • Human services.
  • Similar employees whose services are substantially dedicated to mitigating or responding to the COVID-19 public health emergency.

City payroll costs for public health and public safety employees may be reimbursed if the payments are for services “substantially dedicated” to mitigating or responding to the COVID-19 public health emergency.

Payroll and benefit costs are also covered for employees who could have been furloughed or otherwise laid off but whose jobs were instead repurposed to perform previously unbudgeted functions substantially dedicated to mitigating or responding to the COVID-19 public health emergency.

On July 8, the U.S. Treasury updated its FAQs regarding use of Coronavirus Relief Funds for increased administrative leave costs of public employees who could not telework in the event of a stay-at-home order or COVID-19 in the workplace. The Treasury noted, the statute requires that payments be used only to cover costs that were not accounted for in the budget most recently approved as of March 27, 2020. As stated in the Guidance, a cost meets this requirement if either (a) the cost cannot lawfully be funded using a line item, allotment, or allocation within that budget or (b) the cost is for a substantially different use from any expected use of funds in such a line item, allotment, or allocation. If the cost of an employee was allocated to administrative leave to a greater extent than was expected, the cost of such administrative leave may be covered using payments from the Fund.  Recall that while the U.S. Treasury notes eligible costs are to be incurred before Dec. 30, 2020, that cities are to return funds to the county by Nov. 15, 2020, so it would be better to use the Nov. 15 deadline.

Cities may also receive reimbursement for the cost of deploying staff to substantially different functions due to the pandemic. Costs may include personnel and services that were budgeted for in the most recently approved budget but which, due entirely to the COVID-19 public health emergency, have been diverted to substantially different functions. The guidance provides the following illustrative examples:

  • Redeploying corrections facility staff to enable compliance with COVID-19 public health precautions through work such as enhanced sanitation or enforcing social distancing measures.
  • Redeploying police to support management and enforcement of stay-at-home orders.
  • Diverting educational support staff or faculty to develop online learning capabilities, such as through providing information technology support that is not part of the staff or faculty’s ordinary responsibilities.

The guidance notes a public function does not become a “substantially different use” merely because it is provided from a different location or through a different manner. For example, although developing online instruction capabilities may be a substantially different use of funds, online instruction itself is not a substantially different use of public funds than classroom instruction.

The entire payroll cost of an employee whose time is substantially dedicated to mitigating or responding to the COVID-19 public health emergency is eligible for fund payments, provided that such payroll costs are incurred by Dec. 30, 2020. An employer may also track time spent by employees related to COVID-19 and apply fund payments on that basis but would need to do so consistently.

Hazard pay would be eligible if determined to be a necessary expense. Hazard pay means additional pay for performing hazardous duty or work involving physical hardship, in each case that is related to COVID-19. However, hazard pay expenses would only be eligible if paid to the categories of employees mentioned above (public safety, public health, health care, human services, etc.).

The funds may also be used to cover employment and training programs for employees furloughed due to the public health emergency if the city determined the costs of such employment and training programs would be necessary due to the public health emergency.

Get more information about Coronavirus Relief Funds

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Q38.  Do employers have to pay employees for unauthorized telework hours? Do I have to pay employees for hours worked even when they do not report those hours?

A38. In FAQ #14 of COVID-19 and the FLSA , the DOL states , in accordance with the FLSA, employers must pay employees for all hours of work (and telework) actually performed, including overtime work, if the employer knew or had reason to believe the work was performed. The DOL notes, this is true even of hours of telework that you did not authorize.  Employers also must compensate employees for unreported hours of telework that the employer knew or had reason to believe had been performed. However, a city is not required to compensate employees for unreported hours of telework that you have no reason to believe had been performed, i.e., where you neither knew nor should have known about the unreported hours.  In most cases, a city may satisfy the obligation to compensate teleworking employees by providing reasonable time-reporting procedures and compensating for all reported hours.

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Q39. Can employees who are exempt from the FLSA’s overtime requirements under the executive, administrative and professional exemptions perform other nonexempt duties during the COVID-19 public health emergency and continue to be treated as exempt?

A39. Yes. During the COVID-19 public health emergency—as declared by a federal, state or local authority—exempt employees may temporarily perform nonexempt duties required by the emergency without losing their exempt status.

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Q40. Will telemedicine visits count as in-person visits to establish a serious health condition under the FMLA?

A40. In FAQ #12 of the the DOL notes yes, until Dec. 31, 2020 they will consider telemedicine visits to be in-person visits if the visit includes an examination, evaluation or treatment by a health care provider; is performed by videoconference; and is permitted and accepted by state licensing authorities. Electronic signatures also will be accepted to establish a serious health condition under the FMLA.

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