FAQs: Big Fish Town Hall

Last Updated on

April 10, 2020

Table of Contents

FFCRA
CARES Act
Payroll Integration




FFCRA

Q: What is the effective date of the FFCRA?

A: April 1 through December 31, 2020.

Q: Which employees count toward my total for purposes of determining whether I’m covered under the FFCRA?

A: All part-time, full-time, and temporary employees should be counted to get your total employee count, including any employees on leave and temporary employees working through an agency on someone else’s payroll.

Q: How do I claim the exemption as a business with fewer than 50 employees?

A: A small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

  1. Employer has fewer than 50 employees.
  2. Leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  3. An authorized officer of the business has determined that at least one of the following three conditions is satisfied:
  • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity.
  • The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

To take this exemption, an authorized officer of the business should note the reason for the exemption and maintain it with the request for leave.  No materials should be sent to the Department of Labor.

Q: Do overtime hours have to be calculated to determine an employee’s average daily hours?

A: Yes.  You must include those hours if the employee regularly works overtime; however, you do not need to consider overtime premium pay when calculating an employee’s rate of pay under these leaves.

Q: Can employees take up to two weeks of emergency paid sick leave for each qualifying reason?

A: No.  The hard cap for paying employees paid sick leave under the FFCRA is 80 hours.  No employee may receive greater than that.  Should an employer offer more than 80 hours to a single employee, any hours paid beyond those required by law will not be eligible for the tax credit.

Q: Are E-PSL or E-FMLA retroactive?

A: No.  Employers are not required to provide any leaves under the FFCRA prior to April 1st, and any leave provided in accordance with these laws prior to April 1st is not tax-credit eligible.

Q: May I require an employee to provide certification of their need for leave?

A: Yes.  In fact, the Department of Labor is requiring employers to gather a form of certification if they are claiming the tax credit in event the IRS needs to audit an employer.  Therefore, you are required by law to get a certification from your employees if you wish to take the tax credit.

Q: Can an employee take E-FMLA intermittently?

A: Yes, an employer may decide to permit intermittent E-FMLA leave but is not required to do so.  This can be in any increment agreed upon by the employer and employee.

Q: Can an employee take E-PSL intermittently?

A: When teleworking, yes.  When working on-site, only when the employee is taking leave to care for a child whose school or daycare is closed or whose childcare provider is unavailable.  Taking leave intermittently for any of the other reasons increases the risk for COVID-19 transfer.

Q:  If we closed our worksite prior to April 1st, do we have to pay out E-PSL?

A: No.  This is true whether you’re closed for lack of work or because a state, local, or federal court issued a directive to close.

Q: What if we close our worksite after April 1st?

A: Employees who are not on leave of absence would not be able to apply for leave of absence from the date of the closure/furlough. Employees who are on leave at the time the department or worksite is closed and employees are furloughed would only be eligible to take paid leave to the date of closure or furlough.  Effective on the date of closure or furlough, employees become ineligible to take leave.

Q:  If my employee is placed on partial furlough and requests leave, how do I calculate their hours for leave?

A: Use the hours they were working before their hours were reduced.

Q: Does paying E-PSL satisfy my obligation to pay state PSL if the reasons overlap?

A: No.  The DoL has made it very clear that leave taken under the FFCRA is in addition to existing leave entitlements. Employees may choose to supplement FFCRA leaves using existing leave allowances but only up to their normal earnings; however, employers may not require employees to do this, and employers are not required to permit employees to supplement with other hours to make up any differences in pay.

Q: Can my employee take E-FMLA in addition to regular FMLA for other reasons for a total of 24 weeks of leave?

A: No.  If an employee has exhausted their FMLA they cannot take E-FMLA, and vice-versa.  The 12-week cap applies to both. An employee could potentially take four weeks of E-FMLA, paid at their 2/3 rate of pay for weeks 3 and 4, then take 8 weeks at another time to cover an FMLA-qualifying medical condition, unpaid.  Their FMLA entitlement would be exhausted at that point and would be unavailable for either type of leave.

Q: How do I count employees for the “20 or more calendar workweeks in the current or preceding calendar year?”

A: This only applies to pre-existing FMLA.  Under E-FMLA, you count the total employees you will have on the first day an employee will take leave.

Q: We have temporarily terminated most of our employees because of lack of work.  What are we required to pay out to them in the form of sick leave?
A: Those employees are no longer on your payroll and therefore not eligible for sick leave.  You have no responsibilities under the FFCRA for those employees who are let go.

Q: I have a unique situation.  I own a yoga studio with 15 teachers.  The studio has been closed due to state order; however, the teachers are streaming from home or from the studio.  How does EPSL apply in this situation?  Am I obligated to pay since the studio is closed?  Can I furlough my employees and have them apply for UI or do I need to pay EPSL?
A: Employees able to work remotely are not eligible for E-PSL or E-FMLA because they’re still working.

Q: I have an employee who was out on FMLA -employee medical since 11-23-19 and was to return to work on 3/31/20.  I received an updated Doctors note on 3/31/20 extending his LOA to 7/1/20.  Since the Doctor did not specify this was COVID related, I would just continue his FMLA. Correct?
A: Yes, without a triggering COVID-19 related reason, an employee is only entitled to their usual FMLA.  It sounds like this employee has exhausted their FMLA, though.

Q: When you terminate an employee, are we not required to pay out their remaining sick and vacation pay?
A: In California, you are required to pay out vacation pay but not sick pay.  The same is true of Colorado.  Refer to your state laws.  The FFCRA is a federal sick plan and is not governed by state laws.  Employers are not required to pay out unused E-PSL or E-FMLA.

Q: In calculating employee count for EFMLA – is it still within a 75 mile radius or just at the specific site?
A: We do not yet have guidance on this specific question from the Department of Labor.

Q: Was there a maximum payout for E-PSL?
A: Yes.  E-PSL is capped at $511/day to an aggregate max of $5,110 for reasons that trigger a 100% salary replacement.  For reasons triggering a 2/3 salary replacement, the cap is $200/day up to $2,000.

Q: If a restaurant is open but only scheduling a few employees, are employees who are not being scheduled entitled to EFMLA or EPSL?
A: It sounds as though you are furloughing part of your workforce, in which case they would be eligible for unemployment compensation benefits under their state plan rather than E-FMLA or E-PSL.

Q: What if they insist they need quarantine but aren’t able to get a note from the doctor stating so?
A: You are required by law to obtain a medical or public health official certification in order to obtain the credit or provide E-PSL under the FFCRA.  You can provide other paid leaves or unpaid leave as an alternative, subject to the state or company rules that govern those leaves.

Q: I have an employee with 2 kids whose school has been shut down.  Where would I get the certification?
A: Employers are required to obtain from the employee a notice of closure or unavailability from the child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed from an employee or official of the school, place of care, or child care provider.

Q: Our company has been closed since 03/20 per the governor’s stay-at-home order. We have paid out of our pocket to our employee till 03/26 and are planning to pay till 03/31. Can we use the 10 day E-PSL starting 04/01? After that, we can do a temporary termination? Or can we furlough half of the people on weekly basis but pay them using the 10 day E-PSL?
A: Yes, you can opt to pay the E-PSL starting on April 1st and then lay off your employees afterward, but you are not required to do so prior to layoff.  You may also decide to use E-PSL prior to furloughing, but you are not required to do so prior to furlough.  Employees will be eligible to receive unemployment while on furlough.

Q: After April 1st can you close a part of a business (like a department) but remain open? Do I still have to pay the E-PSL for the employees in those departments we closed and furloughed/laid off?
A: Yes, you may close one department down and keep your essential departments running.  E-PSL is not due to any employees on furlough or who have been laid off.

Q: What is considered proof to prove employees are out due to their children being out of school?
A: Employers are required to obtain from the employee a notice of closure or unavailability from the child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed from an employee or official of the school, place of care, or child care provider.

Q: As an owner I depend on my business for an income. How can I collect unemployment or anything similar?
A: The tax credit option under the FFCRA is available for self-employed individuals, or if you are on your own payroll you may pay yourself the E-PSL/E-FMLA (with the appropriate documentation) and take your tax credit.  For unemployment questions related to self-employment, please visit the EDD’s website at https://www.edd.ca.gov/disability/Self-Employed_Eligibility.htm.

Q: Certification for employee who wants to take leave under the E-FFCRA: do we just need written notice from employee with their signature or we need any certification from more official place such as Dr or school?
A: You are required to find a notice from the health care professional who is recommending quarantine or from the school (the school notice can be from an employee such as a teacher, or can be news shared on the website).  For public health orders, a copy of the health order is sufficient.

Q: If an employee is diagnosed with COVID-19, what should we do to ensure the office and plant are safe for our employees?
A: You may be required to share with employees that they may have been exposed to COVID-19 (while protecting the employee’s identity to the extent possible) and recommend testing.

You may also be able to check temperatures for employees in some cases; however, we recommend reaching out to your attorney if you wish to do so.

Q: If I need to furlough my employee(s) after April 1st because we can’t afford to operate – do I need to exhaust their EPSL first prior to furlough and having them apply for UI?  In other words, can I furlough if need been and not pay EPSL?
A: Yes, you can furlough an employee without paying out E-PSL first.  Employees who are furloughed are not entitled to E-PSL, even if they were on E-PSL up to the date of the furlough.

Q: For a company of over 50 employees, what if too many people go out due to care for child, and/or the other eligibility reasons and therefore it’s too hard for us to operate?  Is there anything we could do in this situation to put a CAP to the number of employees that can go out so we don’t have major operational issues?
A: We’re unaware at this time of any exclusions for business with fifty or more employees.  We recommend that you contact a labor attorney.

Q: I haven’t read anything about forms and process such as FMLA requires, just a doctor’s note. Correct?
A: Yes, you must receive a note certifying the need for leave.  The FFCRA does not require you to pay out leave without one.

Q: Where do we get an off-work certification for the entire state of CA?  Show Governor stay home order?

A: Yes, a statewide order to isolate, such as a stay-home or shelter-in-place order, qualifies as certification from a public health official.

Q: E-FMLA is for care to parent/grandparent too? Or just school children?  But need notes either way, correct?
A: E-FMLA only covers the care of the employee’s child whose school or daycare has been closed or whose childcare provider is unavailable due to reasons related to COVID-19.

Q: Are we allowed to deduct medical, dental and vison premiums under EPSL & EFMLA?
A: We believe so since the employee would normally be obligated to pay their portion of the benefit premiums to maintain their health insurance.  The Act and the DoL do not address this specifically, but we see no reason why this would not be permissible.

Q: How or where do we apply for the credit/reimbursement for the leave pay?
A: There is no application for the sick leave and FMLA leave credit under the FFCRA. When the information for the sick leave and FMLA is input into the payroll system the credits will be applied to the payroll taxes for that payroll.




CARES Act


Q: What if you apply the PPP to payroll from 2/15-4/30 and after that you want to apply for the tax credit and or the deferral ?
A: It is our understanding that an employer can only choose one form of assistance. If an employer determines that the PPP loan is the best course of action for their business, they cannot defer the tax payments.

Q: How do we show we used the payroll loan for payroll? Is it simply showing we paid out that amount in payroll?
A: No clear directions have been provided for accounting for the use of the PPP loan. Once further guidance is provided, we will provide an update. Note: it is suggested that employers keep records of transactions in case of an audit.

Q: Where do we go to apply for the forgivable Loan under the CARES Act, and do you know what the loan amounts are based on?
A:  For a listing of SBA lenders please visit the SBA website at https://www.sba.gov/funding-programs/loans . The have a list for authorized lenders. Loan amounts are based on the following.

Who is Eligible for PPP Loans?

  • Businesses with 500 or fewer employees.
  • Businesses that fall within NAICS Code 72 (Accommodation and Food Services sector) eligible for employing fewer than 500 employees per location.
  • Full-time, part-time, and employees employed on “other basis” are included, such as independent contractors.
  • Applicants are not required to show that credit is unavailable elsewhere or demonstrate repayment ability (PPP loans are backed by the SBA).

How much can be borrowed?

  • Up to $10 million.
  • Calculated at 2.5 times the average monthly payroll costs of the business (averaged over the one-year period prior to the date of the loan).
  • “Payroll Costs” include compensation (salary, wage, commission, or similar compensation, payment of cash tip or equivalent, severance pay), group health and employer paid insurance premiums, retirement benefits, and state or local payroll taxes (a/k/a employer state/local taxes, but not employee state/local taxes).
  • For the purpose of calculating average monthly payroll costs, employers must exclude amounts that exceeds $100,000 for any single employee.


Q: Where and when do we apply for the payroll loan?
A: For a listing of SBA lenders please visit the SBA website at https://www.sba.gov/funding-programs/loans . The have a list for authorized lenders. Businesses may apply for the loan through June 30, 2020.

Q: So a business should not apply for PPP until they have the real need, correct?  Since need to use within 8 weeks?
A: The referenced 8 weeks is for loan forgiveness. The loans are available thru June 30, 2020.


Q: How long does it take to get an answer for PPP approval?
A: This will need to be addressed to the lender. However, The CARE Act does stipulate the following.

Q: If I furlough employees with reduced hours can we still use PPP for the hours we pay out?
A: Please refer to the eligibility requirements below and speak with your SBA lender’s loan agent for more information.

Who is Eligible for PPP Loans?

  • Businesses with 500 or fewer employees.
  • Businesses that fall within NAICS Code 72 (Accommodation and Food Services sector) eligible for employing fewer than 500 employees per location.
  • Full-time, part-time, and employees employed on “other basis” are included, such as independent contractors.
  • Applicants are not required to show that credit is unavailable elsewhere or demonstrate repayment ability (PPP loans are backed by the SBA).


Q: As a restauranteur, we may not be open again for several months.  If and when we receive the PPP loan, are we required to bring on the staff from that point forward, and pay them with the loan proceeds?  Or do we wait until we are open again and bring them on at that point?
A: In order to receive the loan forgiveness, the following criteria have been provided.

How to obtain Loan Forgiveness under the PPP?

PPP loans can be forgiven to the extent that the loan proceeds have been used for payroll, mortgage interest, rent, and permissible utilities during the eight-week period after the loan is made. Loan forgiveness will be reduced based on:

  • Failure to maintain average number of Full-Time/FTE employees versus either 2/15/19 – 6/30/19, or 1/1/20 – 2/29/20.  
  • A 25% reduction in compensation for any individual making less than $100,000 per year measured against the most recent full quarter.
  • Reductions in either employee counts or in compensation between 2/15/20 and 30 days after enactment of the CARES Act will generally be ignored to the extent that they are reversed by 6/30/20.
  • You may apply for this loan through June 30th, 2020. 

Q: Can employers include tips in average wages and receive credit for that portion as well?
A: Yes, commissions and tips are considered part of an employee’s regular wages in the same way they are applied under the rules of the FLSA.  Employers must include these.

Q: Can you take less than 2.5 X your past payroll?  We have let some people go but not everyone, and we would like to keep the remaining employees…
A: Please consult with an SBA lender for this information.

Q: Are public employers eligible for the tax credit?
A: We are currently in the process of gathering more information on this subject. We will provide updates as they become available.

Q: Did I hear right that you cannot take the SBA loan and take the tax credits or social security payments?
A: To clarify an employer can take an SBA loan or tax credit under the CARES Act and still be eligible to take the tax credit under the FFCRA for paying out leaves.




PAYROLL INTEGRATION

Q: Are max annual hours based on days or weeks?  For example, is an employee that only works a couple days a week entitled to 2 weeks (sick) or 10 weeks (EFMLA) average weekly hours or 10 (or 50) days of average daily hours?
A: The DoL’s exact words are “A part-time employee is entitled to leave for his or her average number of work hours in a two-week period.” Therefore, If they are a Part-Time employee and do not have a set schedule they would be entitled to 2 weeks of their average hours worked. iSolved has a report called the FFCRA Average Hours and Wage Report. Once the average hours are determined with that report, the Max Annual Hours on the Earning screen and the Accrual balance can be updated.

Q: So if make more than $511/day – the stop would just be $5110 before the 80 hours? Or do you need to add an alternate rate for E-sick?
A: The stop will be set up in the system for the 80 hours or the $5,110 Annual Dollar Limit. Whichever amount is reached first. The law states $511/day or$5,110 total. If you make more than $511/day the stop will happen when you reach the $5,110. 

Q: What about auto decrament when you separate it?
A: When the Emergency Paid Sick is set up in iSolved we will test the auto decrement hours. This will decrement the same as normal Sick and Vacation.

Q: Some of our employees will be placed on furlough, may we place them inactive in Big Fish?
A: Yes, Absolutely. If employee’s are furloughed you will want to mark them as “inactive” in the system. If they are laid off, that is a separation of the company you will want to mark those employees “terminated”

If you want a status change reason that says furlough or COVID 19 please email your RM. 

Q: Can I see all Employment Status Codes you can set up?
A: The employment Status codes are text fields. We can Set up anything you would like. If you have specific codes or names you want to use. Email your RM and we will set those up.

Q: The regular rate includes commissions, non-discretionary bonuses (most bonuses fall into this category), tips, piece rate, etc. Add totals of all above pay and divide by hours worked during the period to get regular rate – is the system set up to account for this?
A: Yes, commissions and tips are considered part of an employee’s regular wages in the same way they are applied under the rules of the FLSA.  Employers must include these.

Leave a Reply