PUBLISHED 04.03.20
Dear Clients & Friends of HR Solutions Group,
Our team continues to monitor the guidance being released by the Department of Labor (DOL) and local law firms.
A significant point of clarification came with the use of Emergency Paid Sick Leave (EPSL) for companies that closed as a result of the Stay Safe Stay Home Executive Order in Michigan. This took many companies and law firms by surprise. Previously, all guidance indicated that any state or local Stay At Home order didn't technically meet the criteria for using EPSL. The rule now clarifies that it does include “orders that advise some or all citizens to shelter in place [or] stay at home,” the DOL’s test for determining whether an employee who is subject to a stay-at-home order can take paid sick leave based on that order substantially limits the scope of eligible employees:
Essentially, employees can only claim paid sick leave based on a stay-at-home order if the stay-at-home order is the sole cause of their inability to work. In other words, they would have to be able to work “but for” that order. If there’s any other reason why they cannot work, they do not qualify.
This is true even if the other reason employees wouldn’t be able to work is directly caused by the stay-at-home order (for example, the stay-at-home order forced the business to close or the business closed because of a lack of customers due to such order).
A few key reminders on this point:
April 1 (this week) is the first anyone could have considered using Paid Sick Leave anyway.
For most employees, unemployment is still the better option due to the extra $600 in addition to the state $362 maximum. For employees making over the new $962 combined unemployment rate you could consider using Paid Leave instead for 2 weeks if they meet the criteria.
If an employee is on unemployment, they are not eligible for Paid Leave. Unemployment is typically for lack of work or being unable to work. This is somewhat blurred now with the option to use EPSL in certain situations that resulted from the Stay at Home Executive Order.
We don't recommend changing from Unemployment to EPSL in the middle of a work week if possible for cleaner unemployment benefits processing.
These further clarifications and additions may cause employers to revisit their workforce planning strategy.
The DOL also has provided more guidance on the documentation requirements for EPSL & Emergency Family Medical Leave Expansion Act (EFMLA). We are currently updating our internal leave request forms and calculation worksheets to reflect these changes. Full details can be found at federalregister.gov/d/2020-07237 and DOL Q&A.
Please give our office a call at 616-719-5372 or email at reneeg@thehrsolutionsgroup.com if you would like to schedule a time for us to walk through your specific situation and/or would like some assistance with the above mentioned documentation and planning.
We are here to help you, should you need us.
Be well and stay safe,
The HR Solutions Group Team