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1
The information presented here is current as of April 22, 2020. The government is
frequently issuing new guidance, and we will address updates in regular NFP
communications as soon as practicable.
This presentation is for
informational purposes only.
Any statements provided in the
presentation or by the speakers
cannot be relied upon as tax,
legal or medical advice.
What we’ll cover today
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• Reinstatement without discrimination
• Returning from furlough vs. layoff
• Benefits considerations
• Reinstatement impacts on unemployment eligibility
• Remainder of the year considerations
• Q&A
Business Resources
3
• Agency of Commerce and Community Development (ACCD)
updates
• Virtual Town Hall on SBA financial assistance programs, Friday
April 24 at 2pm
https://accd.vermont.gov/content/sba-updates-employer-financial-
and-technical-support-action-team
• SBA guidance for compliance with PPP loans and maximizing
loan forgiveness
https://addisoncountyedc.org/uploads/documents/Paycheck%20Pr
otection%20Program%20Compliance%20Require.pdf
Reinstatement Scenarios
4
Employer has received payment under PPP Loan
• Will payment be 100% of previous rate of pay?
• Will all employees be recalled? If not, which ones?
• Is there work for the employee?
• Employee’s regular duty, or other work that needs to be done
• Remote work for employees who typically don’t work remotely
Work is now available, or workplace restrictions have been lifted
• All employees, or only some?
• Full or part time?
Objective Reinstatement Decisions
5
Step one
• Determine your company needs
• What work needs to be done?
Step Two
• Determine your staffing needs to accomplish the work
• How many employees?
• Skills needed?
Step 3
• Determine who you will bring back
• Who is best suited to do the work?
• Avoid discriminatory actions (both intentional and unintentional), or
decisions that could be perceived as potentially discriminatory
• Document your decision-making process
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PROTECTED CLASSES
RACE COLOR ETHNICITY GENDER RELIGION
AGE DISABILITYPREGNANCY
SEXUALORIENTATION
or IDENTITY
NATIONAL ORIGIN
CITIZENSHIPANCESTRY
GENETICINFO
VETERANSGENDER
IDENTITYCRIME
VICTIMS
HIV STATUS SEX
Reinstatement Pitfalls
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• Not recalling older employees, or employees that you deem to
be in ill health, because you think they will be more susceptible
or afraid to come to work due to COVID-19
• Not recalling the employee who recently took leave for the birth
of a child, because you think child care will be difficult for them
to find
• Recalling based on performance without clear documentation of
performance differences
• Not recalling the employee who filed a sexual harassment claim
because they’re perceived as a trouble maker and not a team
player
*Be careful of the perception of discrimination. Proceed with
caution, and with documented job-related facts.*
Consider flexible options
9
Scenario
Given recent easing of restrictions of non-essential business
production, Company A determines it will need 3 full time
employees to process its product.
Pre-COVID 19, Company A needed 6 employees to process its
product.
Options:
• Bring back 3 employees @ 40 hours per week
• Bring back all 6 employees @ 20 hours per week
Furlough vs. Layoff
Furlough
• Temporary, with
employment status
remaining intact
Layoff
• Employment ties are
severed
• Benefits are
terminated, with
COBRA being offered
• Vacation/PTO would
be paid out in
accordance with your
policy
Returning from Furlough
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Benefits
• No benefits reinstatement – benefits are still intact
• Will employee continue benefits eligibility if not rehired full time?
• Check your plan docs for hours eligibility requirements
• If ALE, need to look at stability period
• Collection of missed employee premium/FSA/DCAP
contributions
• Increase deductions for subsequent paychecks until the
missed premiums are paid
• Notify employee in writing if you didn’t do so when initially
furloughed
• Accrual of PTO under your policies while employee was out
Returning from Layoff
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Health/welfare Benefits
• Likely terminated from benefits plans
• Check your plan docs for rehire waiting period
• Will the employee be eligible based on terms of re-hire?
• Check your plan docs for hours eligibility requirements
• If ALE, and employee rehired within 13 weeks, need to look at
stability period
Dependent Care Account (DCAP)
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• Loss of child care is likely a qualifying event for changing a
DCAP deduction
• If daycare has closed, and the daycare expense no longer
exists, employee can adjust their DCAP deduction
• Allowable expenses need to be incurred while the plan is in
place (expenses incurred during a layoff are not eligible)
• Employee not eligible for “refund” from DCAP account
because daycare closed
• Daycare expenses are only allowable if the expense is incurred
so that a parent can work. If a spouse is furloughed, then
daycare expense might be deemed unnecessary because the
spouse was not working.
Returning from Layoff
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• PTO – no legal mandates except with a contractual arrangement
• Has it been paid out?
• Accrual schedule after break in service
• Accrual during leave of absence
Returning from Layoff
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Paid Sick Leave – covered under VT statute
• VT requires accrual of at least 1 hour per 52 hours worked
• Allows for 12-month waiting period to use earned sick time
• If waiting period completed prior to layoff and rehired within 12
months, immediate accrual with no waiting period for using.
• If waiting period not completed prior to layoff and rehired within
12 months, employee shall have the same time remaining in
their waiting period as on the date of discharge
• Employee not entitled to retain any earned sick time that
accrued before the time of the layoff unless agreed to by the
employer.
Retirement Plan
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Bridging of service for retirement plans will be plan-specific.
Check your plan docs and consult with your plan provider.
Unemployment considerations
17
• If called back to a reduced schedule, employee might still be
eligible for partial unemployment
• What if the employee does not want to return, and prefers to
collect unemployment?
• Employee will likely be deemed ineligible because they have
received an offer of employment
• Possible exception in VT for “an unreasonable risk of exposure
at their place of employment”
• Follow OSHA and CDC and Department of Health guidelines
at your workplace
FFCRA Flowchart: Is Employee eligible for expanded FMLA?
Does the employer haveless than 500 employees on
the date of leave request?
No
EE is not eligible for
EFMLA
Yes
Has the employee worked at
least 30 days?
No
EE is not eligible for
EFMLA
Yes
Does the employee need to miss work to care for son/daughter
whose school or place of care is closed
due to COVID-19?
No
EE is not eligible for
EFMLA
Yes
Employee can take 12 weeks
of job-protected EFMLA leave.
10 days of unpaid leave & up to 10 weeks at 2/3 pay
(capped at $200/day or $10,000 in
aggregate)
FFCRA Flowchart: Is Employee eligible for emergency paid sick leave?
Does the employer have less than 500 employees on
the date of leave request?
No
EE is not eligible for
EPSL
Yes
Does the employee need to miss work for
one of the 6 recognized reasons?
No
EE is not eligible for
EPSL
1. EE quarantined or isolated by federal, stateor local order
2. EE advised by health care professional toself-quarantine due to concerns related to
COVID-193. EE experiencing COVID-19 symptoms and
seeking medical diagnosis4. EE caring for an individual subject to reason
#1 or #25. EE caring for a child because of schoolor
childcare facility closure6. EE experiencing any other substantially
similar condition specified by the Secretary of HHS
Employee can take up to 80 hours of paid leave
(pro-rated for part-time EEs)• Reasons 1-3 = 100% of pay
up to $511/day
• Reasons 4-6 = 2/3 ofregular pay up to $200/day
Reasons
Yes
FFCRA
20
Remember:
• It does not come into play while an employee is on furlough
• Applies to both on-site and remote workers
• Only applies if qualifying COVID-19 reason prevents employee
from working
• If employee reinstated to payroll due to PPP loan, but is not
working, FFCRA does not apply
• FFCRA is in place through Dec. 31, 2020, so will likely be
requested more frequently as employees return to work and
summer camps are cancelled. Now is the time to prepare.
FFCRA interpretation is evolving and changing. Specific
circumstances should be reviewed individually as they arise.
Time to update policies!
21
• Create FFCRA policy
• Review all leave policies to determine:
• How do these policies interact?
• Do they run concurrently?
• Is intermittent leave permitted?
• Do you want to modify your own company policies?
Other policy/document reviews
22
• Employee handbook
• Furlough/layoff policy
• Rehire policy
• Bridging of service for PTO accrual and other non-health
benefits
• PTO accrual while on paid/unpaid leave
• Health plan documents - Stipulate plan provisions, such as
eligibility and qualifying events
• Amendment might be needed to reflect CARES Act addition of
certain OTC meds and menstrual products covered under
health FSA
Effective Policies Should Be
23
• Clear enough to give guidance and promote consistency
• Vague enough to allow for flexibility when warranted
• Clear enough to comply with local/federal standards and
statutes
• Vague enough to be applicable to various locations, work
groups and circumstances
When crafting pandemic policies
24
• No two situations will be the same
• Policy should reflect flexibility
• Workplace safety (hand washing, PPE, etc.) can be mentioned,
but doesn’t necessarily belong in an employee handbook
• General statement/paragraph outlining company commitment to
following appropriate safety measures in the event of workplace
illness or pandemic would be appropriate
Additional preparation for returning to the workplace
25
• Display FFCRA employee rights poster
• Develop FFCRA leave request/approval forms and records
maintenance system
• Safety protocol using CDC/Department of Health guidelines
• Hand washing/sanitizing
• Signage
• Purchasing soap/hand sanitizer/disinfectant
• Face masks/gloves
• Set up for social distancing
• Remote working arrangements
Resources
26
• FFCRA https://www.congress.gov/116/bills/hr6201/BILLS-116hr6201enr.pdf
• FFCRA Fact Sheet https://www.dol.gov/agencies/whd/pandemic/ffcra-
employee-paid-leave
• FFCRA: Questions and Answers:
https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
• FFCRA Rules: https://www.federalregister.gov/documents/2020/04/06/2020-
07237/paid-leave-under-the-families-first-coronavirus-response-act
• FFCRA Non-enforcement Bulletin https://www.dol.gov/agencies/whd/field-
assistance- bulletins/2020-1
• FFCRA Model Notice
https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422
_Non-Federal.pdf
• FFCRA Notice FAQs https://www.dol.gov/agencies/whd/pandemic/ffcra-
poster-questions
• IRS FFCRA Tax Credit https://www.irs.gov/newsroom/covid-19-related-tax-
credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-
faqs
QUESTIONS?
27
Submit questions to
Claire Raabe and Sean McManus
Thank you for listening!Link to recording and slides will be forthcoming.
Susan Graham, SPHR, SHRM-SCP, HR Solutions Consultant
NFP
620 Hinesburg Road | Suite 200 | South Burlington, VT 05403