City Employment Issues During COVID-19 Pandemic

Published: March 27, 2020

(Updated June 2, 2020)

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 frequently asked questions (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 May 18, 2020)

Q3. Can cities quarantine an employee who was in contact with someone who is awaiting COVID-19 test results? (Updated April 10, 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 April 10, 2020)

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

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 June 2, 2020)

Q11. If an employee has been diagnosed with COVID-19, when can they return to work? (Updated June 2, 2020)

Q12. How do cities process I-9s for new hires during the COVID pandemic?(Updated April 23, 2020)

Q13. What are the requirements of the new federal Families First Coronavirus Response Act? (Updated May 21, 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 April 3, 2020)

Q19. Can the paid FMLA Public Health Emergency Leave be used intermittently? (Updated April 3, 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?

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?

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

Q23. Can an employee stay home under the FMLA expansion to avoid getting COVID-19? (Updated April 20, 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?  (Added April 3, 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 April 6, 2020)

Q28. As an employer, how long do I need to retain documentation relating to FFCRA leaves? (Added April 3, 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? (Added April 10, 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 April 21, 2020)

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

Gov. Walz Executive Order — Unemployment Insurance

On March 16, 2020, Gov. Tim Walz issued an executive order 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 No. 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.”

—Learn more about state Unemployment Insurance & COVID

Gov. Walz 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. 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 pandemic influenza 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. Recently, CDC Guidance has been updated for essential 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.

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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: 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/she was in close proximity to (within six feet) for a prolonged period of time (the CDC notes while recommendations vary on the length of time of exposure, but 15 minutes of close exposure can be used as an operational definition) during the prior 48-hour period (for additional information, read the CDC’s definition of close contact). 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 Department of Health COVID-19 hotline (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 MN Data Practices Act and Americans with Disabilities Act, the city cannot identify the infected worker’s name. In addition to the guidance from the MN COVID-19 hotline, cities can also consult the CDC’s Suspected or Confirmed Cases of CVOID-19 in the Workplace. This CDC 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.

Please be aware of the CDC guidelines for critical infrastructure employees with potential exposure but who are not presenting any COVID-19 symptoms. This guidance allows these specific employees to continue working provided they remain symptom free and the city implements additional precautions (for additional information, please refer to answer A10, Part B of these FAQs).

Additionally, 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.

A10, Part B: Exposure: The CDC issued updated Interim Guidance, for critical infrastructure employees with potential exposure but who are not showing any COVID-19 symptoms, to ensure continuity of operations of essential functions. These changes were announced during the White House coronavirus task force briefing on April 8, 2020.  The CDC indicated this interim guidance applies to personnel in 16 different sectors of work including local law enforcement, 911 call center employees, hazardous material responders, janitorial/custodian staff, and workers in informational technology, transportation and government facilities.

The new guidance focuses on implementing precautionary measures in the workplace for critical infrastructure employees in the event a worker is potentially exposed to COVID-19 (either through household contact or having close contact within six feet of someone with a confirmed or suspected COIVD-19 case). The CDC notes the time frame for having contact with an individual includes the period of time of 48 hours before that person became symptomatic (fever, cough, shortness of breath).

Specifically, the CDC states the workers may be permitted to work, provided they don’t show any symptoms and the following additional precautions are conducted prior to and during their work shift:

  • Pre-Screen temperature checks: As a practical matter, it’s important to consider an employee may be infected with COVID-19 without exhibiting recognized symptoms such as a fever. However, the CDC noted in their updated Interim Guidance, that employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, this temperature check should happen before the individual enters the facility. Cities considering testing an essential employee’s temperature must consult with their city attorney to analyze what type of device will be used, determine who will conduct those checks and how the testing process will work so testing is conducted privately, and the responding results are kept private (subject to ADA confidentiality requirements and only to be shared with those who have a legitimate need to know). The CDC offers several methods for temperature screening protocols, including using social distancing by maintaining a distance of six feet from others or physical barriers to minimize the screener’s exposure due to close contact with a person who has symptoms during screening. The CDC provides the following examples to consider that incorporating these types of control for temperature testing include:
    • Reliance on Social Distancing: Ask employees to take their own temperature either before coming to the workplace or upon arrival at the workplace. Upon their arrival, stand at least 6 feet away from the employee and:
      • Ask the employee to confirm that their temperature is less than 100.4oF (38.0o C) and confirm that they are not experiencing coughing or shortness of breath.
      • Make a visual inspection of the employee for signs of illness, which could include flushed cheeks or fatigue.
      • Screening staff do not need to wear personal protective equipment (PPE) if they can maintain a distance of 6 feet.
    • Reliance on Barrier/Partition Controls: During screening, the screener stands behind a physical barrier, such as a glass or plastic window or partition, that can protect the screener’s face and mucous membranes from respiratory droplets that may be produced when the employee sneezes, coughs, or talks. Upon arrival, the screener should wash hands with soap and water for at least 20 seconds or, if soap and water are not available, use hand sanitizer with at least 60% alcohol. Then:
      • Make a visual inspection of the employee for signs of illness, which could include flushed cheeks or fatigue.
      • Conduct temperature and symptom screening using this protocol:
        • Put on disposable gloves.
        • Check the employee’s temperature, reaching around the partition or through the window. Make sure the screener’s face stays behind the barrier at all times during the screening.
        • If performing a temperature check on multiple individuals, make sure that you use a clean pair of gloves for each employee and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and you did not have physical contact with an individual, you do not need to change gloves before the next check. If non-contact thermometers are used, clean and disinfect them according to manufacturer’s instructions and facility policies.
      • Remove and discard PPE (gloves), and wash hands with soap and water for at least 20 seconds. If soap and water are not available, use hand sanitizer with at least 60% alcohol.

    If social distance or barrier controls cannot be implemented during screening, PPE can be used when the screener is within 6 feet of an employee during screening. However, reliance on PPE alone is a less effective control and more difficult to implement given PPE shortages and training requirements.

    • Reliance on Personal Protective Equipment (PPE): Upon arrival, the screener should wash their hands with soap and water for at least 20 seconds or use hand sanitizer with at least 60% alcohol, put on a facemask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), and a single pair of disposable gloves. A gown could be considered if extensive contact with an employee is anticipated. Then:
      • Make a visual inspection of the employee for signs of illness, which could include flushed cheeks or fatigue, and confirm that the employee is not experiencing coughing or shortness of breath.
      • Take the employee’s temperature.
        • If performing a temperature check on multiple individuals, make sure that you use a clean pair of gloves for each employee and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and you did not have physical contact with an individual, you do not need to change gloves before the next check. If non-contact thermometers are used, you should clean and disinfect them according to manufacturer’s instructions and facility policies.
      • After each screening, remove and discard PPE and wash hands with soap and water for at least 20 seconds or use hand sanitizer with at least 60% alcohol
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, the worker should self-monitor.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Cities may issue facemasks or can approve employees-supplied cloth face coverings in the event of shortages. Read CDC Guidance on cloth face masks. The CDC encourages employees and employers to consider pilot testing the use of face masks to ensure they do not interfere with essential work assignments.
  • Social Distance: The employee should maintain six feet and practice social distancing as work duties permit in the workplace. The CDC also reminds employees to physically distance when they take breaks together. Stagger breaks and avoid congregating in the break room, and do not share food or utensils.  Additionally, employees should not share headsets or other objects that are near mouth or nose.
  • Disinfect and Clean workspaces: While many cities are already increasing the frequency of cleaning commonly touched surfaces, in the event of possible exposure, employers will want to routinely clean and disinfect all areas such as offices, bathrooms, common areas, and shared electronic equipment. Employers should work with facility maintenance staff to increase air exchanges in rooms.

The CDC further advises if the essential 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.

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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 CDC guidelines: Employees should notify their supervisor and stay home if they are sick. See CDC Guidance for Businesses.

Per the CDC, there are two options for determining when a person may end home isolation after they are ill, using either a time-since-recovery option, or a test-based option.

  • Symptom based strategy: Persons with COVID-19 who have symptoms and were directed to care for themselves at home may stop home isolation after meeting  all of the following conditions:
    • No fever for at least 72 hours without the use of fever-reducing medications;
    • Other symptoms have improved (e.g., cough, shortness of breath have improved); and
    • At least 10 days have passed since symptoms first appeared.
  • Test-based strategy: To determine if a person is still contagious, he or she can leave home if these three things have occurred:
    • Resolution of fever without the use of fever-reducing medications;
    • Other symptoms have improved (e.g., cough, shortness of breath have improved); and
    • The individual received two negative tests in a row, 24 hours apart.

The CDC guidance on when a person who had or likely had COVID-19 can be around others notes that persons who test positive but experience no symptoms may leave quarantine generally 10 days after their test. However, people with conditions that weaken their immune system may need to stay home for longer than the 10-day recommendation. If testing is available and recommended by a person’s health care provider, the person should get tested for COVID-19 to determine if they are still positive. The CDC notes, if testing occurs a person can be around others after receiving two negative test results in a row, at least 24 hours apart.

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:
      Q4. Many states are extending the expiration date of state IDs and/or driver’s licenses. How should the extension be documented in Section 2?A. If the employee’s state ID or driver’s license expired on or after March 1, 2020, and the state has extended the document expiration date due to COVID-19, then it is acceptable as a List B document for Form I-9. 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 the state motor vehicle department’s webpage or other notice indicating that their documents have been extended.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 Vehicle’s website.
  • Record COVID-19 in “Additional Information” field of Section 2.
  • 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.

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).

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.

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. 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.

The DOL FFCRA FAQs provide 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 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.

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.)

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 1 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.)

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

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.

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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 e 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.

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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.

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.

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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, 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. Touch base with your city attorney, but with schools and likely many day cares closed due to COVID-19 (regardless of whether there is virtual learning, since arguably the children still need someone to watch over them), and in the event work (or telework) is not available for your employees, it seems like Emergency Paid Sick Leave and extended FMLA leave would be benefits available for those workers.

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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. 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 their 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).

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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. We have consulted with a local benefits attorney and understand 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 seems like the answer is yes, a city could exclude emergency responders from one leave and not the other, or exclude emergency responders from both leaves. Thus, 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.

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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.

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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.

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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.  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. 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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—Access more COVID-19 News and Resources