March 27, 2020

Coronavirus (COVID-19) and WA PFML Updates

UPDATE Model Notice Published – Families First Coronavirus Response Act (FFCRA)
*Please note, the notice mentioned below must be posted only by employers that are subject to the FFCRA (those that have fewer than 500 employees in the United States)

The Department of Labor (DOL) has released a model notice for employers – the FFCRA requires that each employer post a notice of the requirements of this Act in a conspicuous place on the premises where notices to employees are customarily kept. Our assumption is that this notice may be posted to your intranet and/or emailed directly to your employees.

Department of Labor (DOL)
The DOL has released additional FAQs (see #15-37) regarding the FFCRA. In general, the FAQs speak to required documentation, telework, intermittent leave, work-site closures/furloughs, health insurance and top-up pay.

Of note, employers will be able to claim a tax credit only if they have received (and retained) “appropriate documentation” from the employee to establish the employee’s entitlement to leave under the Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Act (EFML). Employers who pay employees sick leave in excess of the FFCRA requirement may not claim and will not receive tax credit for those amounts in excess of the FFCRA’s statutory limit. Any paid leave provided prior to April 1, 2020 will not be eligible for tax credits.

Coronavirus Aid, Relief, and Economic Security Act (CARES Act)
President Trump has signed the CARES Act into law today. The Act clarifies that the two weeks of emergency paid leave under the EPSL may not exceed $511 per day and $5,100 in the aggregate for an individual or $200 per day and $2,000 in the aggregate for an employee to care for a quarantined individual or child. Under EFML, the Act clarifies that the ten weeks of paid leave may not exceed $200 per day and $10,000 in the aggregate for each employee.

The Act amends the EFML to extend paid leave to employees who meet the following criteria:

  • Were laid off after March 1, 2020,
  • Worked for the employer for at least 30 of the last 60 days, and
  • Were rehired by the employer

The Act also expands the tax credit mentioned above (DOL section) by providing for an advance of the payroll tax credit, requiring the Secretary of the Treasury to prescribe regulations necessary to permit the advancement of the credit, and requiring the Secretary of the Treasury to waive penalties associated with the failure to deposit certain payroll taxes.

Leave Law Updates Regarding COVID-19

District of Columbia 
The COVID-19 Response Emergency Amendment Act (B 718, Enacted March 17, 2020) temporarily expands covered absences under the D.C. Family and Medical Leave Act (DCFMLA). Employees who are unable to work during a declared public health emergency and have been ordered or recommended to self-isolate or quarantine will now be able to take leave (declaration of emergency leave) under the DCFMLA. Additionally, for this leave type, the one year of employment and 1,000 hours worked requirements are suspended. The law applies to all employers in D.C. and the leave is indefinite during the public health emergency. There are no certification requirements for declaration of emergency leave – the mere declaration of the public health emergency is all that is required.

A temporary administrative order (OAR 839-009-0230) was filed on March 18, 2020 that allows for employees to utilize Oregon Family Leave Act (OFLA) to care for their child whose school or place of care has been closed in conjunction with a statewide public health emergency declared by a public health official. This is temporary rule will be in place through September 13, 2020.

Washington PFML Changes
Governor Inslee signed House Bill 2614 on March 25, 2020, which makes immediate changes to the Paid Family and Medical Leave program. Some highlights:

  • Son-in-law and daughter-in-law have been added to the list of qualifying family members you can care for with paid family leave; “child” now includes “a child’s spouse.”
  • “Casual labor” has been defined as infrequent or irregular work that happens fewer than 12 times in a calendar quarter.Casual laborers cannot opt-in for PFML benefits; therefore, employers who hire someone for casual labor are not required to report or remit premiums for these individuals.Casual laborers would not be able to use hours or wages toward their eligibility for PFML.
  • “Paid Time Off” has been defined as vacation leave, personal leave, medical leave, sick leave, compensatory leave, or any other paid leave offered by an employer under the employer’s established policy.
  • “Supplemental benefit payments” have been defined as payments made by an employer to an employee as salary continuation or as paid time off.Such payments must be in addition to any PFML benefits the employee is receiving.
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