Families First Coronavirus Response Act—Questions and Answers
The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and Dec. 31, 2020.
An employer has fewer than 500 employees if, at the time an employee’s leave is to be taken, the employer employs fewer than 500 full-time and part-time employees within the United States (including any state, the District of Columbia, or any territory or possession of the United States). In making this determination, employers should include:
· Employees on leave;
· Temporary employees who are jointly employed by the employer and another employer (regardless of whether the jointly-employed employees are maintained on only one employer’s payroll); and
· Day laborers supplied by a temporary agency (regardless of whether the employer is the temporary agency or the client firm if there is a continuing employment relationship).
Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.
Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer, and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act, and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.
In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.
No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.
Federal employees are eligible to take paid sick leave under the Emergency Paid Sick Leave Act. However, only some federal employees are eligible to take expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act. An employee’s eligibility will depend on whether they are covered under Title I or Title II of the FMLA. The DOL encourages federal employees to discuss questions about their eligibility for expanded family and medical leave with their employers or with the Office of Personnel Management. Additional FAQs regarding public sector employers will be forthcoming.
To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the DOL, which will be addressed in more detail in forthcoming regulations. You should not send any materials to the DOL when seeking a small business exemption for paid sick leave and expanded family and medical leave.
A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.
If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. If there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.
Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.
However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.
If the employee’s schedule varies from week to week, please see the answer to Question 5, because the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee.
Please keep in mind the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave as described in the answer to Question 7.
Please note that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.
It depends on your normal schedule as well as why you are taking leave.
If you are taking paid sick leave because you are unable to work or telework due to a need for leave because you: (1) are subject to a federal, state or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, you will receive for each applicable hour the greater of:
· Your regular rate of pay;
· The federal minimum wage in effect under the FLSA; or
· The applicable state or local minimum wage.
In these circumstances, you are entitled to a maximum of $511 per day, or $5,110 total, over the entire paid sick leave period.
If you are taking paid sick leave because you are: (1) caring for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially similar condition that may arise, as specified by the Secretary of Health and Human Services (HHS), you are entitled to compensation at two-thirds of the greater of the amounts above. Under these circumstances, you are subject to a maximum of $200 per day, or $2,000 over the entire two week period.
If you are taking expanded family and medical leave, you may take paid sick leave for the first 10 days of that leave period, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer’s policy. For the following 10 weeks, you will be paid for your leave at an amount no less than two-thirds of your regular rate of pay for the hours you would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, you will not receive more than $200 per day or $12,000 for the 12 weeks that include both paid sick leave and expanded family and medical leave when you are on leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
To calculate the number of hours for which you are entitled to paid leave, please see the answers to Questions 5-6 that are provided in this guidance.
For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave.[1] If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.
If you are paid with commissions, tips or piece rates, these wages will be incorporated into the above calculation.
You can also calculate this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.
No. You may take up to two weeks—or 10 days—(80 hours for a full-time employee or, for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.
You may be eligible for both types of leave, but only for a total of 12 weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period, thus, covers the first 10 workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first 10 workdays have elapsed, you will receive two-thirds of your regular rate of pay for the hours you would have been scheduled to work in the subsequent 10 weeks under the Emergency and Family Medical Leave Expansion Act.
Please note that you can only receive the additional 10 weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.
No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds 10 days. This only includes leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
No.
You are considered to have been employed by your employer for at least 30 calendar days if your employer had you on its payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, if you want to take leave on April 1, 2020, you would need to have been on your employer’s payroll as of March 2, 2020.
If you have been working for a company as a temporary employee, and the company subsequently hires you on a full-time basis, you may count any days you previously worked as a temporary employee toward this 30-day eligibility period.
If one of your employees takes paid sick leave under the Emergency Paid Sick Leave Act, you must require your employee to provide you with appropriate documentation in support of the reason for the leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work (including telework) for that reason, and the date(s) for which leave is requested. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised the employee to self-quarantine. For example, this documentation may include a copy of the federal, state or local quarantine or isolation order related to COVID-19 applicable to the employee or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave wages, you should retain this documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.
If one of your employees takes expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, you must require your employee to provide you with appropriate documentation in support of that leave, just as you would for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care or child care provider. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason. If you intend to claim a tax credit under the FFCRA for the expanded family and medical leave, you should retain this documentation in your records. You should consult IRS applicable forms, instructions and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.
You are entitled to paid sick leave if you are unable to work or telework due to a qualifying reason related to COVID-19. You must provide documentation to your employer in support of the reasons for your paid sick leave. These documents may include a copy of the federal, state or local quarantine or isolation order related to COVID-19 or written documentation by a health care provider advising you to self-quarantine due to concerns related to COVID-19.
You must provide documentation to your employer in support of your expanded family and medical leave taken to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. For example, this requirement may be satisfied with a notice of closure or unavailability from your 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 to you from an employee or official of the school, place of care or child care provider. Your employer must retain this notice or documentation in support of expanded family and medical leave, including while you may be taking unpaid leave that runs concurrently with paid sick leave, if taken for the same reason.
Please also note that all existing certification requirements under the FMLA remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA. For example, if you are taking leave beyond the two weeks of emergency paid sick leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the FMLA, if required by your employer.
You may telework when your employer permits or allows you to perform work while you are at home or at a location other than your normal workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.
You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework.
If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance, early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.
If your employer allows teleworking—for example, allows you to perform certain tasks or work a certain number of hours from home or at a location other than your normal workplace—and you are unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then you are entitled to take paid sick leave.
Similarly, if you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. Of course, to the extent that you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.
Yes, if your employer allows it and if you are unable to telework your normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, you and your employer may agree that you may take paid sick leave intermittently while teleworking. Similarly, if you are prevented from teleworking your normal schedule of hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you and your employer may agree that you can take expanded family medical leave intermittently while teleworking.
You may take intermittent leave in any increment, provided that you and your employer agree. For example, if you agree on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.
The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the DOL is supportive of these voluntary arrangements that combine telework and intermittent leave.
It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:
· You are subject to a federal, state or local quarantine or isolation order related to COVID-19;
· You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
· You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
· You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
· You are experiencing any other substantially similar condition specified by the Secretary of HHS.
Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either: (1) use the full amount of paid sick leave; or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because, if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide paid sick leave as necessary to keep you from spreading the virus to others.
If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until Dec. 31, 2020, if another qualifying reason occurs.
In contrast, if you and your employer agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if your child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you may take paid sick leave on Mondays, Wednesdays and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.
The DOL encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave on less than a full work day for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the DOL is supportive of those voluntary arrangements.
Yes, but only with your employer’s permission. Intermittent expanded family and medical leave should be allowed only when you and your employer agree upon this type of schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.
The DOL encourages employers and employees to collaborate to achieve flexibility. Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the DOL supports these voluntary arrangements.
No. If, prior to the FFCRA’s effective date, your employer sent you home and stopped paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a federal, state or local directive. You should contact your state workforce agency or state unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or state or local requirements, you are not eligible for unemployment insurance.
No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a federal, state or local directive. You should contact your state workforce agency or state unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a federal, state or local directive. You should contact your state workforce agency or state unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your state workforce agency or state unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
No, not while your worksite is closed. If your employer closes your worksite—even for a short period of time—you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a federal, state or local directive. You should contact your state workforce agency or state unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.
No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.
You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is calculated based on your work schedule before it was reduced (see Question 5).
No. If your employer provides you paid sick leave or expanded family and medical leave, you are not eligible for unemployment insurance. However, each state has its own unique set of rules, and the DOL recently clarified additional flexibility to the states (UIPL 20-10) to extend partial unemployment benefits to workers whose hours or pay have been reduced. Therefore, individuals should contact their state workforce agency or state unemployment insurance office for specific questions about eligibility. For more information, please see https://www.careeronestop.org/LocalHelp/service-locator.aspx.
If your employer provides group health coverage that you’ve elected, you are entitled to continued group health coverage during your expanded family and medical leave on the same terms as if you continued to work. If you are enrolled in family coverage, your employer must maintain coverage during your expanded family and medical leave. You generally must continue to make any normal contributions to the cost of your health coverage. See WHD Fact Sheet 28A.
If you do not return to work at the end of your expanded family and medical leave, check with your employer to determine whether you are eligible to keep your health coverage on the same terms (including contribution rates). If you are no longer eligible, you may be able to continue your coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). COBRA, which generally applies to employers with 20 or more employees, allows you and your family to continue the same group health coverage at group rates. Your share of that cost may be higher than what you were paying before, but may be lower than what you would pay for private individual health insurance coverage. (If your employer has fewer than 20 employees, you may be eligible to continue your health insurance under state laws that are similar to COBRA. These laws are sometimes referred to as “mini COBRA” and vary from state to state.) Contact the Employee Benefits Security Administration (EBSA) at https://www.dol.gov/agencies/ebsa/workers-and-families/changing-jobs-and-job-loss to learn about health and retirement benefit protections for dislocated workers.
If you elect to take paid sick leave, your employer must continue your health coverage. Under the Health Insurance Portability and Accountability Act (HIPAA), an employer cannot establish a rule for eligibility or set any individual’s premium or contribution rate based on whether an individual is actively at work (including whether an individual is continuously employed), unless absence from work due to any health factor (such as being absent from work on sick leave) is treated, for purposes of the plan or health insurance coverage, as being actively at work.
No. If you are eligible to take paid sick leave or expanded family and medical leave under the FFCRA, as well as paid leave that is already provided by your employer, unless your employer agrees, you must choose one type of leave to take. You may not simultaneously take both, unless your employer agrees to allow you to supplement the amount you receive from paid sick leave or expanded family and medical leave under the FFCRA, up to your normal earnings, with preexisting leave. For example, if you are receiving two-thirds of your normal earnings from paid sick leave or expanded family and medical leave under the FFCRA and your employer allows it, you may use your preexisting employer-provided paid leave to get the additional one-third of your normal earnings so that you receive your full normal earnings for each hour.
If your employee chooses to use existing leave you have provided, yes; otherwise, no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including federal employees. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings.
However, you are not required to allow an employee to use existing paid leave to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. Further, you may not claim, and will not receive tax credit, for these supplemental amounts.
No. Under the FFCRA, only the employee may decide whether to use existing paid vacation, personal, medical or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. The employee would have to agree to use existing paid leave under your paid leave policy to supplement or adjust the paid leave under the FFCRA.
You may pay your employees in excess of FFCRA requirements. However, you cannot claim—and will not receive tax credit for—those amounts in excess of the FFCRA’s statutory limits.
You may satisfy your obligations under the Emergency Family and Medical Leave Expansion Act by making contributions to a multiemployer fund, plan or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the amount of paid family and medical leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. This type of fund, plan or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.
You may satisfy your obligations under the Emergency Paid Sick Leave Act by making contributions to a multiemployer fund, plan or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the hours of paid sick leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. This type of fund, plan or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.
No. Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provide that, consistent with its bargaining obligations and collective bargaining agreement, an employer may satisfy its legal obligations under both Acts by making appropriate contributions to such a fund, plan or other program based on the paid leave owed to each employee. However, the employer may satisfy its obligations under both Acts by other means, provided they are consistent with its bargaining obligations and collective bargaining agreement.
Both of these new provisions use the employee definition as provided by the FLSA. Therefore, all of your U.S. (including territorial) employees who meet this definition are eligible including full-time and part-time employees, and “joint employees” working on your site temporarily and/or through a temp agency. However, if you employ a health care provider or an emergency responder, you are not required to pay that employee paid sick leave or expanded family and medical leave on a case-by-case basis. Also, certain small businesses may exempt employees if the leave would jeopardize the company’s viability as a going concern. See Question 58 below.
There is one difference regarding an employee’s eligibility for paid sick leave versus expanded family and medical leave. While your employee is eligible for paid sick leave regardless of length of employment, your employee must have been employed for 30 calendar days in order to qualify for expanded family and medical leave. For example, if your employee requests expanded family and medical leave on April 10, 2020, he or she must have been your employee since March 11, 2020.
Generally, if you employ fewer than 500 employees, you are a covered employer that must provide paid sick leave and expanded family and medical leave. For additional information on the 500 employee threshold, see Question 2. Certain employers with fewer than 50 employees may be exempt from the Act’s requirements to provide certain paid sick leave and expanded family and medical leave. For additional information regarding this small business exemption, see Question 4 and Questions 58 and 59 below.
Certain public employers are also covered under the Act and must provide paid sick leave and expanded family and medical leave. For additional information regarding coverage of public employers, see Questions 52-54 below.
Under the FFCRA, a “son or daughter” is your own child, which includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child. For additional information about in loco parentis, see Fact Sheet #28B: Family and Medical Leave Act (FMLA) leave for birth, placement, bonding or to care for a child with a serious health condition on the basis of an “in loco parentis” relationship.
In light of Congressional direction to interpret definitions consistently, WHD clarifies that, under the FFCRA, a “son or daughter” is also an adult son or daughter (that is, one who is 18 years of age or older), who:
· Has a mental or physical disability; and
· Is incapable of self-care because of that disability.
For additional information on requirements relating to an adult son or daughter, see Fact Sheet #28K and/or call the DOL’s toll free information and help line available 8 am–5 pm in your time zone, 1-866-4US-WAGE (1-866-487-9243).
If you believe that your employer is covered and is improperly refusing paid sick leave to you under the Emergency Paid Sick Leave Act, the DOL encourages you to raise and try to resolve your concerns with your employer. Regardless of whether you discuss your concerns with your employer, if you believe your employer is improperly refusing you paid sick leave, you may call 1-866-4US-WAGE (1-866-487-9243). WHD is responsible for administering and enforcing these provisions. If you have questions or concerns, you can contact WHD by phone or visit www.dol.gov/agencies/whd. Your call will be directed to the nearest WHD office for assistance to have your questions answered or to file a complaint. In most cases, you can also file a lawsuit against your employer directly without contacting WHD. If you are a public sector employee, please see the answer to Question 54.
If you believe that your employer is covered and is improperly refusing expanded family and medical leave to you or otherwise violating your rights under the Emergency Family and Medical Leave Expansion Act, the DOL encourages you to raise and try to resolve your concerns with your employer. Regardless whether you discuss your concerns with your employer, if you believe your employer is improperly refusing you expanded family and medical leave, you may call WHD at 1-866-4US-WAGE (1-866-487-9243) or visit www.dol.gov/agencies/whd . Your call will be directed to the nearest WHD office for assistance to have your questions answered or to file a complaint. If your employer employs 50 or more employees, you also may file a lawsuit against your employer directly without contacting WHD. If you are a public sector employee, please see the answer to Question 54.
Generally, yes. In light of Congressional direction to interpret requirements among the Acts consistently, WHD clarifies that the Acts require employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave.
In most instances, you are entitled to be restored to the same or an equivalent position upon return from paid sick leave or expanded family and medical leave. Thus, your employer is prohibited from firing, disciplining or otherwise discriminating against you because you take paid sick leave or expanded family and medical leave. Nor can your employer fire, discipline or otherwise discriminate against you because you filed any type of complaint or proceeding relating to these Acts, or have or intend to testify in any such proceeding.
However, you are not protected from employment actions (such as layoffs) that would have affected you regardless of whether you took leave. This means that your employer can lay you off for legitimate business reasons, such as the closure of your worksite. Your employer must be able to demonstrate that you would have been laid off even if you had not taken leave.
Your employer may also refuse to return you to work in your same position if you are a highly compensated “key” employee as defined under the FMLA, or if your employer has fewer than 25 employees, and you took leave to care for your own son or daughter whose school or place of care was closed, or whose child care provider was unavailable, and all four of the following hardship conditions exist:
· Your position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of your leave;
· Your employer made reasonable efforts to restore you to the same or an equivalent position;
· Your employer makes reasonable efforts to contact you if an equivalent position becomes available; and
· Your employer continues to make reasonable efforts to contact you for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after your leave began, whichever is earlier.
If you are an eligible employee, you are entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave you have taken under the FMLA.
However, if your employer was covered by the FMLA prior to April 1, 2020, your eligibility for expanded family and medical leave depends on how much leave you have already taken during the 12-month period that your employer uses for FMLA leave. You may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If you have taken some, but not all, 12 workweeks of your leave under FMLA during the current 12-month period determined by your employer, you may take the remaining portion of leave available. If you have already taken 12 workweeks of FMLA leave during this 12-month period, you may not take additional expanded family and medical leave.
For example, assume you are eligible for preexisting FMLA leave and took two weeks of FMLA leave in January 2020 to undergo and recover from a surgical procedure. You therefore have 10 weeks of FMLA leave remaining. Because expanded family and medical leave is a type of FMLA leave, you would be entitled to take up to 10 weeks of expanded family and medical leave, rather than 12 weeks. And any expanded family and medical leave you take would count against your entitlement to preexisting FMLA leave.
If your employer only becomes covered under the FMLA on April 1, 2020, this analysis does not apply.
It depends. You may take a total of 12 workweeks of leave during a 12-month period under the FMLA, including the Emergency Family and Medical Leave Expansion Act. If you take some, but not all 12, workweeks of your expanded family and medical leave by Dec. 31, 2020, you may take the remaining portion of FMLA leave for a serious medical condition, as long as the total time taken does not exceed 12 workweeks in the 12-month period. Please note that expanded family and medical leave is available only until Dec. 31, 2020; after that, you may only take FMLA leave.
For example, assume you take four weeks of Expanded Family and Medical Leave in April 2020 to care for your child whose school is closed due to a COVID-19 related reason. These four weeks count against your entitlement to 12 weeks of FMLA leave in a 12-month period. If you are eligible for preexisting FMLA leave and need to take FMLA leave in August 2020 because you need surgery, you would be entitled to take up to eight weeks of FMLA leave.
However, you are entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave you have taken under the FMLA. Paid sick leave is not a form of FMLA leave and therefore does not count toward the 12 workweeks in the 12-month period cap. Please note, though, that if you take paid sick leave concurrently with the first two weeks of expanded family and medical leave, which may otherwise be unpaid, then those two weeks do count towards the 12 workweeks in the 12-month period.
No. Paid sick leave under the Emergency Paid Sick Leave Act is in addition to other leave provided under federal, state or local law; an applicable collective bargaining agreement; or your employer’s existing company policy.
No. The Emergency Family and Medical Leave Expansion Act applies only when you are on leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons. However, you can take paid sick leave under the Emergency Paid Sick Leave Act for numerous other reasons.
For purposes of the Emergency Paid Sick Leave Act, a full-time employee is an employee who is normally scheduled to work 40 or more hours per week.
In contrast, the Emergency Family and Medical Leave Expansion Act does not distinguish between full- and part-time employees, but the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.
For purposes of the Emergency Paid Sick Leave Act, a part-time employee is an employee who is normally scheduled to work fewer than 40 hours per week.
In contrast, the Emergency Family and Medical Leave Expansion Act does not distinguish between full- and part-time employees, but the number of hours an employee normally works each week affects the amount of pay the employee is eligible to receive.
The language about counting employees over calendar workweeks is only in the FMLA’s definition of “employer.” This language does not apply to the Emergency Family and Medical Leave Expansion Act for purposes of expanded family and medical leave. Employers should use the number of employees on the day the employee’s leave would start to determine whether the employer has fewer than 500 employees for purposes of providing expanded family and medical leave and paid sick leave. See Question 2 for more information.
Yes. If you are on employer-provided group health coverage, you are entitled to group health coverage during your paid sick leave on the same terms as if you continued to work. Therefore, the requirements for eligibility—including any requirement to complete a waiting period—would apply in the same way as if you continued to work, including that the days you are on paid sick leave count towards completion of the waiting period. If, under the terms of the plan, an individual can elect coverage that becomes effective after completing the waiting period, the health coverage must take effect once the waiting period is complete.
Generally, yes. You are entitled to paid sick leave if you work for a public agency or other unit of government, with the exceptions below. Therefore, you are probably entitled to paid sick leave if, for example, you work for the government of the United States, a state, the District of Columbia, a territory or possession of the United States, a city, a municipality, a township, a county, a parish, or a similar government entity, subject to the exceptions below. The Office of Management and Budget (OMB) has the authority to exclude some categories of U.S. Government Executive Branch employees from taking certain kinds of paid sick leave. If you are a federal employee, the DOL encourages you to seek guidance from your respective employers as to your eligibility to take paid sick leave.
Further, health care providers and emergency responders may be excluded by their employer from being able to take paid sick leave under the Act. See Questions 56-57 below. These coverage limits also apply to public-sector health care providers and emergency responders.
It depends. In general, you are entitled to expanded family and medical leave if you are an employee of a non-federal public agency. Therefore, you are probably entitled to paid sick leave if, for example, you work for the government of a state, the District of Columbia, a territory or possession of the United States, a city, a municipality, a township, a county, a parish, or a similar entity.
However, if you are a federal employee, you likely are not entitled to expanded family and medical leave. The Act only amended Title I of the FMLA; most federal employees are covered, instead, by Title II of the FMLA. As a result, only some federal employees are covered, and the vast majority are not. In addition, the OMB has the authority to exclude some categories of U.S. Government Executive Branch employees with respect to expanded and family medical leave. If you are a federal employee, the DOL encourages you to seek guidance from your respective employers as to your eligibility to take expanded family and medical leave.
Further, health care providers and emergency responders may be excluded by their employer from being able to take expanded family and medical leave under the Act. See Questions 56-57 below. These coverage limits also apply to public-sector health care providers and emergency responders.
If you believe that your public sector employer is covered and is improperly refusing paid sick leave to you under the Emergency Paid Sick Leave Act or expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act, the DOL encourages you to raise your concerns with your employer in an attempt to resolve them. Regardless whether you discuss your concerns with your employer, if you believe your employer is improperly refusing you paid sick leave or expanded family and medical leave, you may call WHD at 1-866-4US-WAGE (1-866-487-9243) or visit www.dol.gov/agencies/whd. Your call will be directed to the nearest WHD office for assistance to have your questions answered or to file a complaint.
In some cases, you may also be able to file a lawsuit against your employer directly without contacting WHD. Some state and local employees may not be able to pursue direct lawsuits because their employers are immune from these lawsuits. For additional information, see the WHD website at: https://www.wagehour.dol.gov and/or call WHD’s toll free information and help line available 8am–5pm in your time zone, 1-866-4-US-WAGE (1-866-487-9243).
The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner or other health care provider permitted to issue a certification for purposes of the FMLA.
For purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location or site where medical services are provided that are similar to such institutions.
This definition includes any individual employed by an entity that contracts with any of the above institutions, employers or entities to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces, medical products or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s, territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the DOL encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.
For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes, but is not limited to, military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s, territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the DOL encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.
An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing: (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons; and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
· 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.
A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee this leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:
· Employer employs fewer than 50 employees;
· 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
· An authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.
The DOL encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.
Source: U.S. Department of Labor
[1] If you are a federal employee, the state or local minimum wage would be used to calculate the wages owed to you only if the federal agency that employs you has broad authority to set your compensation and has decided to use the state or local minimum wage.
Back to TopPaid Family Leave During the Coronavirus PandemicPaid Family Leave During the
Coronavirus Pandemic
It is always best, that when in doubt, submit the claim and let the carrier examine and render a decision.
To determine whether a situation qualifies:
- How many employees does the employer have – depending on size and income of the employer mandatory sick time may be required before a claim can be submitted.
- When did the quarantine begin and when will it end? NY State’s program took effect 3/18/2020 – any quarantine time before that date cannot be included in any claim. The Federal program becomes the primary program as of April 1st and carriers will only pay claims (for those who qualify for NY) when the benefit due is above the Federal benefit level. When the benefit due is above the Federal benefit carriers will pay the difference (only if they qualify under NY Guidelines).
To qualify under the NY Emergency DBL/PFL a letter from the Dept of Health (carriers have also noted that they will entertain a letter from a healthcare professional) needs to be included with the claim form.
I have attached a claim form they can use – just please advise that they include that letter from their doctor.
Back to TopCARES Act - Small Business Loan OverviewIn response to the American economy reeling from the coronavirus (COVID-19) pandemic, the federal government recently signed into law the Coronavirus Aid, Relief and Economic Security Act (CARES Act). Among other provisions, the CARES Act provides businesses suffering under the debilitating effects of the pandemic with unprecedented access to emergency loans. This document will serve as an overview of the loan programs available.
How Does the CARES Act Address Small Business Loans?
The CARES Act is the largest economic stimulus measure in modern history and promises to provide help for struggling American families and businesses. Specifically, the Act includes the following provisions:
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The Act includes nearly $350 billion for a federal small business loan program called the Paycheck Protection Program. The program is designed to get cash in the hands of suffering small businesses quickly, with less stringent eligibility requirements than the existing U.S. Small Business Association (SBA) loan programs. Paycheck Protection Program loans are designed to incentivize business owners to keep employees on payroll.
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In addition to businesses already eligible for SBA programs, most businesses with 500 or fewer employees are now eligible for disaster loans of up to $2 million for working capital. Those businesses will also be eligible for an emergency cash advance of $10,000 within days of making the application, which is not repayable even if their loan application is denied.
Overview of CARES Act Small Business Loan Provisions
As noted above, the CARES Act provides two main avenues for obtaining a business loan:
1.
Through the Paycheck Protection Program
2.
Through the SBA as a disaster loan
Below you will find an overview of the eligibility requirements, key loan terms, and how to apply for each program.
PAYCHECK PROTECTION PROGRAM LOANS
The CARES Act allocated $350 billion to help small businesses keep workers employed amid the pandemic and economic downturn. Included in the CARES Act was the Paycheck Protection Program, which provides 100% federally guaranteed loans to small businesses, through Jun. 30, 2020. Importantly, these loans may be forgiven if borrowers maintain their payrolls during the crisis. Though information on the program continues to be rolled out, the following is an overview of information available now:
Eligibility
You are eligible for a loan under this program if you are:
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A small business that was in operation on Feb. 15, 2020, with fewer than 500 employees (The 500-employee threshold includes all employees: full-time, part-time and any other status.)
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A small business that otherwise meets the SBA’s size standard
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A 501(c)(3) with fewer than 500 employees
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An individual who operates as a sole proprietor
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An individual who operates as an independent contractor
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An individual who is self-employed and who regularly carries on any trade or business
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A tribal business concern that meets the SBA size standard
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A 501(c)(19) Veterans Organization that meets the SBA size standard
Terms of the Loan
The terms of a Paycheck Protection Program loan are as follows:
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The amount of a Paycheck Protection Program loan available to each borrower is 2.5 times the borrower’s average monthly payroll costs, not to exceed $10 million.
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Paycheck Protection Program loans require no collateral, have a maximum 10-year term, and an interest rate of no more than 4%.
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The loans are available to eligible companies to be used for the following costs incurred from Feb. 15, 2020 through Jun. 30, 2020: payroll (including salary, wage, parental, family, medical or sick leave, and more); health care benefits and related insurance premiums; employee compensation; mortgage interest obligations; and rent and utilities.
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A borrower of a Paycheck Protection Program loan is eligible for loan forgiveness equal to the amount spent during the eight-week period after the date of the original loan for rent on a leasing agreement, payroll costs (including wages for USA employees capped at $100,000 per employee), mortgage interest and utilities. The amount forgiven may be reduced if the borrower reduces the number of employees, or salaries and wages of employees. Borrowers must apply through their lender for forgiveness on the loan.
How to Apply for a Paycheck Protection Program Loan
The application has been posted on the Treasury Department’s CARES Act resource page. The SBA has a network of 1,800 approved lenders that process small business loans. If you are interested in a Paycheck Protection Program loan, you should first contact your bank to see if it is an SBA-approved lender. If your bank is not an SBA-approved lender, you can contact the SBA to find one.
SBA ECONOMIC INJURY DISASTER LOANS
Another option for small businesses is the SBA’s existing Economic Injury Disaster Loan (EIDL) Program, which was expanded by the CARES Act and provides for longer-term loans with favorable borrowing terms. Companies in all 50 states, District of Columbia, and some U.S. territories are typically eligible for EDIL loans relating to economic injury caused by the COVID-19 pandemic, and will be available until Dec. 31, 2020.
Eligibility
The CARES Act expanded EIDL loan eligibility for the period between Jan. 31, 2020, and Dec.
31, 2020, to include:
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Businesses with 500 or fewer employees
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Sole proprietorships and independent contractors with or without employees
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Private nonprofits and cooperatives
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Tribal small business concerns and ESOPs with 500 or fewer employees
If your business meets the aforementioned requirements and your revenues have suffered substantial economic injury from COVID-19, your business is eligible no matter your line of business.
Terms of the Loan
The terms of an EIDL loan are outlined below:
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The amount of an EIDL loan available to each borrower is the business’s actual economic injury as determined by the SBA, not to exceed $2 million.
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EIDL loans under the CARES Act do not require personal guarantees for loans up to $200,000, but the SBA will take a collateral interest in your business’s assets to the extent available.
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The interest rate on EIDL loans is 3.75% fixed for small businesses and 2.75% for nonprofits. EIDL loans have up to a 30-year term. Specific terms will be determined on a case-by-case basis, based upon each borrower’s ability to repay the loan.
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EIDL loans may be used for payroll, debts and to pay obligations that cannot be met due to the pandemic.
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Your business may be approved for an EIDL loan based on credit score alone, without being required to submit tax returns.
The CARES Act also permits applicants to request an advance of up to $10,000 which may be used to keep employees on payroll, to pay for sick leave, meet increased production costs, or pay business obligations. If you apply, the advance should be paid to your business within three days. This advance, available backdated from Jan.31, 2020 to Dec. 31, 2020, is not required to be repaid even if your application is denied. To access this advance, borrowers must first apply for an EIDL and then request the advance.
How to Apply for an SBA Economic Injury Disaster Loan
EIDL loans are available directly from the SBA. They have introduced a streamlined application process, which you can access here. Additionally, SBA resource partners are available to help guide you through the EIDL application process. You can find the nearest Small Business Development Center (SBDC), Women’s Business Center, or SCORE mentorship chapter here.
WHAT’S NEXT?
It is clear that both Paycheck Protection Program loans and SBA EIDL loans provide very favorable terms to prospective borrowers. Eligible small businesses who have been economically impacted by the COVID-19 pandemic would be wise to consider taking advantage of such programs.
Businesses interested in the Paycheck Protection Program loans should consult with their banker(s). In the meantime, those also interested in the EIDL loans should evaluate with its advisors whether they are eligible. If so, businesses can consider gathering all relevant company documents and financial information that borrowers would ordinarily expect a lender to want to review (e.g., payroll information).
As the pandemic develops and the CARES Act provisions are rolled out, look for more relevant guidance from Carriage Trade Insurance Agency, Inc. in the near future.
Back to TopINSURER PRACTICES DURING THE COVID-19 PANDEMICNEW YORK STATE DEPARTMENT OF FINANCIAL SERVICES THIRD AMENDMENT TO 11 NYCRR 185 (INSURANCE REGULATION 27-A) CREDIT LIFE INSURANCE AND CREDIT ACCIDENT AND HEALTH INSURANCE THIRD AMENDMENT TO 11 NYCRR 187 (INSURANCE REGULATION 27-C) CREDIT UNEMPLOYMENT INSURANCE NEW 11 NYCRR 229 (INSURANCE REGULATION 216) INSURER PRACTICES DURING THE COVID-19 PANDEMIC AMENDMENT TO 3 NYCRR 405 PREMIUM FINANCE AGENCIES I, Linda A. Lacewell, Superintendent of Financial Services of the State of New York, pursuant to the authority granted by Section 29-A of the Executive Law and Executive Order 202.13, dated March 29, 2020, promulgated thereunder, Sections 202 and 302 of the Financial Services Law, Sections 301, 1116, 3203, 3219, 3220, 4216, 4235, and 4510 and Articles 21, 34, 53, 54, and 55 of the Insurance Law, Sections 561 and 576 of the Banking Law, and Sections 54 and 226 of the Workers’ Compensation Law, do hereby promulgate the following amendments to Titles 3 and 11 of the Official Compilation of Codes, Rules and Regulations of the State of New York, to take effect upon filing of the Notice of Emergency Adoption with the Secretary of State, to read as follows: (Matter in brackets is deleted; new matter is underlined) Section 185.7(m)(4) of Title 11 is amended as follows: (4) The total premium remitted by the creditor shall be assumed to provide coverage for those insured debtors whose payments are not more than two months overdue, regardless of whether or not the debtor has paid a charge for such two months’ coverage; provided, however, that with regard to an insured debtor who does not make a timely premium payment and can demonstrate financial hardship as a result of the COVID-19 pandemic, the total premium remitted by the creditor shall be assumed to provide coverage for the insured debtor whose payments are not more than three months overdue, regardless of whether or not the debtor has paid a charge for such three months’ coverage. Section 187.6(f)(4) of Title 11 is amended as follows: (4) The total premium remitted by the creditor shall be assumed to provide coverage for those insured debtors whose payments are not more than two months overdue regardless of whether or not the debtor has paid a charge for such two months’ coverage; provided, however, that with regard to an insured debtor who does not make a timely premium payment and can demonstrate financial hardship as a result of the COVID-19 pandemic, the total premium remitted by the creditor shall be assumed to provide coverage for the insured debtor whose payments are not more than three months overdue, regardless of whether or not the debtor has paid a charge for such three months’ coverage. A new Part 229 is added to Title 11 as follows: Section 229.1. Preamble (a) On March 29, 2020, Governor Andrew M. Cuomo issued Executive Order 202.13, which, among other things, temporarily suspended or modified Insurance Law sections 1116, 3203, 3219, 3220, and 4510 and articles 34, 53, 54, and 55 and Workers’ Compensation Law sections 54 and 226. (b) The Executive Order modified Insurance Law sections 3203 and 4510 to extend the grace period for the payment of premiums and fees to 90 days for any life policyholder facing a financial hardship as a result of the COVID-19 pandemic. (c) The Executive Order modified Insurance Law sections 3203, 3219, and 3220 to provide a life policyholder with 90 days to exercise rights or benefits under the applicable life insurance policy or annuity contract for any life policyholder who is unable timely to exercise rights or benefits as a result of the COVID-19 pandemic. (d) The Executive Order modified Insurance Law section 1116; Insurance Law articles 34, 53, 54, and 55; and Workers’ Compensation Law sections 54 and 226 to impose a moratorium on an insurer, other than a life insurer, cancelling, non-renewing, or conditionally renewing any property/casualty insurance policy issued to a property/casualty policyholder for a period of 60 days, for any property/casualty policyholder facing financial hardship as a result of the COVID-19 pandemic. (e) The Executive Order also directed the superintendent to promulgate emergency regulations necessary to implement the Executive Order, including regulations regarding: (1) the waiver of late fees; (2) the prohibition on reporting negative data to credit reporting agencies; and (3) the repayment of late premiums over a one-year period. This Part implements that directive. (f) This Part is promulgated pursuant to Executive Order 202.13 and for the duration specified therein, which may be extended. Section 229.2. Definitions (a) Credit reporting agency means a reporting agency that regularly engages in the practice of assembling or evaluating and maintaining, for the purpose of furnishing credit reports to third parties bearing on a person’s credit worthiness, credit standing, or credit capacity, and credit account information from persons who furnish that information regularly and in the ordinary course of business. (b) COVID-19 means the coronavirus disease 2019. (c) Debt collection agency has the meaning set forth in General Business Law section 600. (d) Executive Order means Executive Order 202.13. (e) Insurer means a life insurer and an insurer that writes a property/casualty insurance policy, including an unauthorized insurer that sells insurance through a licensed excess lines broker and is subject to Insurance Law article 34. (f) Late fee means a fee associated with an insurance premium payment that is made at a time later than the premium due date, but prior to both insurance policy or contract cancellation and the time in which an insurer may reject premium payment. (g) Life insurer means an insurer authorized to write life insurance or annuities and an authorized fraternal benefit society. (h) Life policyholder means the person to whom a life insurance policy, annuity contract, or fraternal benefit society certificate is issued, including a certificate holder under a group insurance policy or annuity contract. (i) Person means an individual or business entity. (j) Policyholder means a life policyholder or a property policyholder. (k) Premium finance agency has the meaning set forth in Banking Law section 576(3)(a). (l) Premium finance agreement has the meaning set forth in Banking Law section 576(3)(b). (m) Property/casualty insurance policy means an insurance policy that provides a kind of insurance set forth in Insurance Law section 1113(a)(16), (17), (20), (21), (24), (26), or (30) or that is subject to Insurance Law section 1116 or articles 34, 53, 54, or 55 or Workers’ Compensation Law section 54 or 226. (n) Property policyholder means the individual or small business to whom a property/casualty insurance policy is issued, including a certificate holder under a group insurance policy. (o) Small business means any business that is resident in this State, is independently owned and operated, and employs 100 or fewer individuals. Section 229.3. Extension of grace periods for group life insurance policies and certificates A life insurer shall extend to 90 days the applicable grace periods for the payment of premiums and fees set forth in group life insurance policies and certificates, for any life policyholder who demonstrates financial hardship as a result of the COVID-19 pandemic. Section 229.4. Prohibited practices With regard to a policyholder who does not make a timely premium payment and can demonstrate financial hardship as a result of the COVID-19 pandemic, an insurer shall not: (a) impose any late fees relating to such premium payment; or (b) report the policyholder to a credit reporting agency or refer the policyholder to a debt collection agency with respect to such premium payment. Section 229.5. Premium repayment, demonstration of financial hardship, and voluntary cancellation (a) An insurer shall permit a policyholder who did not make a timely premium payment due to financial hardship as a result of the COVID-19 pandemic, including a policyholder to whom the insurer issued a nonpayment cancellation notice prior to the effective date of the Executive Order, and who can still demonstrate financial hardship as a result of the COVID-19 pandemic, to pay such premium over a 12-month period. An insurer also shall: (1) within ten business days following the promulgation of this Part, provide notice with each insurance premium bill of the provisions of this Part and a toll-free number that the policyholder may call to discuss billing and make alternative payment arrangements; and (2) notify insurance producers and any third-party administrators with whom or which the insurer does business of the provisions of this Part. (b) A licensed insurance producer who services an in-force life insurance policy, annuity contract, or fraternal benefit society certificate or who procured the property/casualty insurance policy for the property policyholder shall mail or deliver notice to the policyholder of the provisions of this Part and section 405.6 of Part 405 of Title 3 within ten business days following the promulgation of this Part. (c) Solely for the purposes of this Part, an insurer shall accept a written attestation from a policyholder as proof of financial hardship as a result of the COVID-19 pandemic. (d) Nothing shall prohibit a policyholder from voluntarily cancelling an insurance policy or annuity contract. Section 229.6. Premium finance agency cancellation; return of unearned premium (a) In the case of a property/casualty insurance policy where the property policyholder does not make the first installment payment to the premium finance agency after the conclusion of the 60-day period described in section 405.6(a)(1) of Part 405 of Title 3 and the premium finance agency cancels the property/casualty insurance policy based on such nonpayment at any time prior to the next succeeding installment payment, the insurer, other than a life insurer, shall return to the premium finance agency for the benefit of the property policyholder, in accordance with the terms of the property/casualty insurance policy but no later than 60 days after the effective date of such cancellation, the gross unearned premiums that are due under the property/casualty insurance policy on a pro rata basis, calculated as if the property/casualty insurance policy had been canceled 60 days prior to the effective date of such cancellation. (b) Nothing in this section shall constitute the provision of free insurance in violation of Insurance Law section 2324 or a deviation from filed rates in violation of Insurance Law section 2314. A new Section 405.6 is added to Title 3 as follows: Section 405.6. No cancellation for financial hardship; prohibited practices (a) This section is promulgated pursuant to Executive Order 202.13 and for the duration specified therein, which may be extended. (b)(1) When a premium finance agreement contains a power of attorney or other authority enabling the premium finance agency to cancel any insurance contract or contracts listed in the agreement, and an insured does not make an installment payment, the premium finance agency shall not cancel the insurance contract or contracts for a period of at least 60 days, including any contractual grace period, for a property/casualty insurance contract or for a period of at least 90 days, including any contractual grace period, for an insurance contract providing life insurance, if the insured can demonstrate financial hardship as a result of the COVID-19 pandemic, and subject to the safety and soundness of the premium finance agency. (2) With regard to an insured who does not make a timely installment payment to the premium finance agency and can demonstrate financial hardship as a result of the COVID-19 pandemic, a premium finance agency: (i) shall extend the due date for such installment payment by at least 60 days for a property/casualty insurance contract and at least 90 days for an insurance contract providing life insurance, and shall not impose any late fees relating to such installment payment; and (ii) shall not report the insured to a credit reporting agency or refer the insured to a debt collection agency with respect to such installment payment. (3) A premium finance agency shall, subject to the safety and soundness of the premium finance agency, permit an insured who did not make a timely installment payment to the premium finance agency due to financial hardship as a result of the COVID-19 pandemic, including an insured to whom the premium finance agency issued a non-payment cancellation notice prior to the effective date of the Executive Order, and who can still demonstrate financial hardship as a result of the COVID-19 pandemic, to pay such installment payment over a 12-month period. Within ten business days following the promulgation of this section, the premium finance agency shall mail or deliver a copy of the information contained in paragraph (1) of this subdivision to each insured for whom the premium finance agency holds a power of attorney or other authority, as described in paragraph (1) of this subdivision, in connection with a property/casualty insurance contract or insurance contract providing life insurance. A premium finance agency also shall: (i) within ten business days following the promulgation of this section, provide notice with each installment payment bill of the provisions of this section and a toll-free number that the insured may call to discuss billing and make alternative payment arrangements; and (ii) notify insurance producers and any third-party administrators with whom or which the premium finance agency does business of the provisions of this section. (4) A licensed insurance producer who services an in-force contract of insurance providing life insurance or who procured the property/casualty insurance contract for the insured, which contract is listed in a premium finance agreement, shall mail or deliver notice to the insured of the provisions of this section and Part 229 of Title 11 within ten business days following the promulgation of this section. (5) In the case of a property/casualty insurance contract where the property insured does not make the first installment payment to the premium finance agency after the conclusion of the 60-day period described in paragraph (1) of this subdivision and the premium finance agency cancels the property/casualty insurance contract based on such nonpayment at any time prior to the next succeeding installment payment, the property/casualty insurer shall return to the premium finance agency for the benefit of the property insured, in accordance with the terms of the property/casualty insurance contract but no later than 60 days after the effective date of such cancellation, the gross unearned premiums that are due under the property/casualty insurance contract on a pro rata basis, calculated as if the property/casualty insurance contract had been canceled 60 days prior to the effective date of such cancellation. (c) Solely for the purposes of this section, a premium finance agency shall accept a written attestation from an insured as proof of financial hardship as a result of the COVID-19 pandemic. (d) Nothing shall prohibit an insured from exercising any right the insured has to voluntarily cancel an insurance contract. (e) This section shall not apply to a settled policy. (f) For the purpose of this section: (1) Credit reporting agency means a reporting agency that regularly engages in the practice of assembling or evaluating and maintaining, for the purpose of furnishing credit reports to third parties bearing on a person’s credit worthiness, credit standing, or credit capacity, and credit account information from persons who furnish that information regularly and in the ordinary course of business. (2) COVID-19 means the coronavirus disease 2019. (3) Debt collection agency has the meaning set forth in General Business Law section 600. (4) Executive Order means Executive Order 202.13. (5) Insurance producer has the meaning set forth in Insurance Law section 2101(k). (6) Insured means a life insured or a property insured. (7) Insurer means a life insurer and an insurer that writes a property/casualty insurance contract, including an unauthorized insurer that sells insurance through a licensed excess lines broker and is subject to Insurance Law article 34. (8) Late fee means a fee associated with an installment payment to a premium finance agency that is made at a time later than the installment payment due date, but prior to both insurance contract cancellation and the time in which a premium finance agency may reject the installment payment. (9) Life insured means the person to whom a life insurance policy, annuity contract, or fraternal benefit society certificate is issued, including a certificate holder under a group insurance policy or annuity contract. (10) Life insurer means an insurer authorized to write life insurance or annuities and an authorized fraternal benefit society. (11) Person means an individual or business entity. (12) Property/casualty insurance contract means an insurance contract that provides a kind of insurance set forth in Insurance Law section 1113(a)(16), (17), (20), (21), (24), (26), or (30) or that is subject to Insurance Law section 1116 or articles 34, 53, 54, or 55 or Workers’ Compensation Law section 54 or 226. (13) Property insured means the individual or small business to whom a property/casualty insurance contract is issued, including a certificate holder under a group insurance contract. (14) Settled policy has the meaning set forth in Insurance Law section 7802(t). (15) Small business means any business that is resident in this State, is independently owned and operated, and employs 100 or fewer individuals. wvoRK Department of :rEOF oRruN,rv. Financial Services ANDREW M. CUOMO LINDA A. LACEWELL Governor Superintendent CERTIFICATION I, Linda A. Lacewell, Superintendent of Financial Services, do hereby certify that the foregoing is an amendment to Part 405 of the Superintendent’s Regulations, Title 3, the Third Amendment to Part 185 (Insurance Regulation 27-A), Third Amendment to Part 187 (Insurance Regulation 27-C), and addition of new Part 229 (Insurance Regulation 216) to Title 11 of the Official Compilation of Codes, Rules and Regulations of the State of New York, signed by me on March 30, 2020, pursuant to the authority granted by Executive Law Section 29-a; Executive Order No. 202.13, dated March 29, 2020, promulgated thereunder; Financial Services Law Sections 202 and 302; Insurance Law Sections 301, 1116, 3203, 3219, 3220, 4216, 4235, and 4510 and Articles 21, 34, 53, 54, and 55; Banking Law Sections 561 and 576; and Workers Compensation Law Sections 54 and 226, to take effect upon filing of the Notice of Emergency Adoption with the Secretary of State of New York. Pursuant to Section 202(6) of the State Administrative Procedure Act, this consolidated rulemaking is being promulgated as an emergency measure. A statement of the specific reasons for the finding of the need for emergency action is attached. Linda A. Lacewell Superintendent of Financial Services Date: March 30, 2020 One State Street, New York, NY 10004¦ www.dfs.ny.gov Statement of the Reasons for the Adoption of Emergency Measure Consolidated Rulemaking Amending 3 NYCRR 405, 11 NYCRR 185 (Insurance Regulation 27-A) and 11 NYCRR 187 (Insurance Regulation 27-C) and Adding New 11 NYCRR 229 (Insurance Regulation 216) On March 7, 2020, Governor Andrew M. Cuomo issued Executive Order Number 202 declaring a disaster emergency in the State of New York in response to the novel coronavirus (“COVID-19”) pandemic. Emergency measures are continuing to be put into place to effectuate the most timely and effective response to this unprecedented crisis. For this purpose, Governor Cuomo issued on March 29, 2020 Executive Order Number 202.13 (“EO 202.13”), directing the Superintendent of Financial Services (“Superintendent”) to promulgate regulations in accordance therewith. This emergency measure implements EO 202.13 by providing certain relief to policyholders, contract holders, and insureds (collectively, “insureds”) who can demonstrate financial hardship as a result of the COVID-19 pandemic, including: (1) amending 11 NYCRR section 185.7(m)(4) and 11 NYCRR section 187.6(f)(4) to provide that premium remitted by a creditor will be assumed to provide coverage under a credit life or credit unemployment insurance policy for those insured debtors whose payments are not more than three months overdue, regardless of whether the debtor has paid a charge for such three months’ coverage; (2) adding a new Part 229 to 11 NYCRR to provide certain protections to insureds who do not make a timely premium payment to a life insurer, property/casualty insurer, or fraternal benefit society, such as an extension of a grace period for the payment of premium and fees set forth in a group life insurance policy or certificate, protection from late payment fees, a prohibition against referral to a credit reporting agency or debt collection agency, and an extension of one year to pay overdue premiums or fees; and (3) adding a new Section 405.6 to 3 NYCRR to, among other things, prohibit any premium finance agency from canceling an insurance policy due to an insured’s failure to make a timely installment payment, for a period of at least 60 days, including any contractual grace period, for a property/casualty insurance policy or for a period of at least 90 days, including any contractual grace period, for a life insurance policy, if the insured can demonstrate financial hardship as a result of the COVID-19 pandemic, and subject to the safety and soundness of the premium finance agency. To help ease the extensive economic burden brought about by the COVID-19 pandemic, and in compliance with EO 202.13, it is imperative that the Superintendent promulgate this emergency measure for the public’s general welfare. Linda A. Lacewell Superintendent of Financial Services
Back to TopNEW YORK CLIENTS INFO RELATED TO THEIR INSURANCE DURING THE COVID PANDEMICWe hope that this message finds you and your family safe and healthy.
These are difficult times. The New York Legislature and Department of Financial Services have been implementing emergency measures in an effort to protect insurance policyholders who have been hit with financial hardship because of the COVID-19 pandemic. Regulations they enacted apply to most insurance policies and include: the waiver of late fees; the prohibition on reporting negative data to credit reporting agencies; and the repayment of late premiums over a 12-month period.
If you have been impacted by this pandemic, this means help may be available.
- If you can demonstrate that you’re unable to make a timely premium payment due to financial hardship because of the COVID-19 pandemic, you may be able to pay such premium over a 12-month period.
- If your policy is financed through a premium finance agency, they may be required to provide a grace period before cancelling your policy for late payment of an installment if you can demonstrate financial hardship because of the COVID-19 pandemic. This grace period will be 60 days for a property/casualty policy; 90 days for a life insurance policy. You may be given a 12-month period to pay the missed installment, and the premium finance agency may not impose late fees or report you to any credit reporting agency or debt collector because of that installment.You may prove hardship by submitting a written attestation to the insurance company or premium finance agency regarding your financial hardship resulting from the COVID-19 pandemic. The full text of the relevant regulations can be read here: https://www.carriagetradeinsurance.com/faq.aspx#FAQ4
If you have any questions about this or your policy, don’t hesitate to contact our team. We’re proud to continue helping you protect what matters most.
Stay safe,
Back to TopCALIFORNIA CLIENTS INSURANCE INFO RELATED TO COVIDhttp://www.insurance.ca.gov/0400-news/0100-press-releases/2020/Back to TopWhat You Can do if You are at Higher Risk of Severe Illness from COVID-19 Based on what we know now, those at high-risk for severe illness from COVID-19 are:
• People aged 65 years and older
• People who live in a nursing home or long-term care facility
* People of all ages with underlying medical conditions particularly if not well controlled, including:
• People with chronic lung disease or moderate to severe asthma
• People who have serious heart conditions
• People who are immunocompromised - Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications.
• People with severe obesity (body mass index [BMI] of 40 or higher)
• People with diabetes • People with chronic kidney disease undergoing dialysis
• People with liver disease Are You at Higher Risk for Severe Illness?
Here’s What You Can do to Help Protect Yourself
- Stay home if possible.
- Wash your hands often.
- Avoid close contact (6 feet, which is about two arm lengths) with people who are sick.
- Clean and disinfect frequently touched surfaces.
- Avoid all cruise travel and non-essential air travel.
cdc.gov/coronavirus
Call your healthcare professional if you are sick. For more information on steps you can take to protect yourself, see CDC’s How to Protect Yourself.
Back to TopHow do I know if our health plan provides "minimum value" based on the ACA rules?Carriage Trade Benefit Services can help you evaluate your plan offerings by estimating your plan’s value using our sophisticated Pay or Play Calculator. In addition, we can provide information on how to ensure that your plan provides minimum value so you stay in compliance.
Back to TopHow do I know if our non-profit is liable for the Cadillac Test which is effective in 2020?Carriage Trade Benefit Services provides a Cadillac Tax Calculator that can help you identify which plans are likely to incur the excise tax. Our tool even estimates the amount of tax that could be owed as a result, allowing you to better manage your bottom line.
Back to TopWhat does our non-profit have to do regarding the "Patient's Bill of Rights"?The ACA imposes three new requirements on group health plans and group or individual health insurance coverage—referred to as “patient protections”—related to the choice of a health care professional and requirements relating to benefits for emergency services, effective for plan years beginning on or after Sept. 23, 2010.
These rules do not apply to grandfathered plans. In addition, the rules regarding choice of health care professional apply only to plans that have a network of providers.
Choice of Primary Care Provider
If a group health plan or group or individual health insurer requires a participant to designate a primary care provider, the participant must be able to choose any participating primary care provider who is able to accept the participant as a patient. This rule includes the designation of a pediatrician as the primary care provider for a child.
The plan must provide a notice informing each participant of the plan’s terms regarding primary care provider designation. The notice should be included in the plan’s summary plan description. The DOL has provided model language for this notice.
OB-GYN Care
Plans that provide coverage for obstetrical and/or gynecological care (ob-gyn care) and require the patient to designate an in-network primary care provider may not require preauthorization or referral for a female participant seeking such care. However, a plan may still require the ob-gyn provider to follow any policies or procedures regarding referrals, prior authorization for treatments and the provision of services.
The plan must inform each participant of these rules and should include the notice in its summary plan description. Model language has been provided for plans to use.
Emergency Services
The ACA places additional requirements on plans and health insurance issuers that provide hospital emergency room benefits. Plans and issuers must provide those benefits without requiring prior authorization, and without regard to whether the provider is an in-network provider.
Back to TopHow do I know how many Full Time equivalent employees work for us?Using Carriage Trade Benefit Services Large Employer Calculator and Full-time Employee Tracker, we can help you determine an employee’s full time status and identify whether you are considered a large employer, and, therefore, subject to the shared responsibility penalty. You can also use our comprehensive Pay or Play Calculator to calculate potential penalties you may receive for not offering affordable coverage—enabling you to determine the best strategic option for your business.
Back to TopWhere can I find an ACA Large employer calculator?Contact us. We will provide you with a simple tool which your finance and HR departments can use to make the calculation.
mjakob@carriagetradeinsurance.com
Back to TopWe need help with education for our employees. What's the best place to find this?re you effectively communicating with your employees?
· Most workers leave their jobs because of miscommunication about expectations, broken promises or excessive workloads. Check out our articles to learn more about how to improve your communication strategies.
Do your employees know about and understand your benefits package?
· Unless your employees are aware of and understand your benefits offerings, they won’t be nearly as effective. Tackle your mounting employee communication concerns with customizable benefits announcements, employee newsletters and presentations.
Are your employees wise health care consumers?
· Empower your employees to take charge of their health care. We have the resources to educate your employees on health care consumerism—and save you money.
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