HR and COVID-19:

Return to Work

Considerations

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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

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• 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

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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

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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.*

Reinstatement guidelines:

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Decisions should be

• Objective

• Job-related

• Documented

Consider flexible options

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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

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• 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

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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!

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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?

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Submit questions to

Claire Raabe and Sean McManus

vtbenefits@nfp.com

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