Return to Work, PPP, and Other Information Updates

Posted by Andrew Kaiser on May 15, 2020

With more and more opening up and the beginning of different kinds of return to work and PPP questions, this update will hopefully give you additional information and clarity going into the coming weeks. If you have any questions, please do not hesitate to reach out to your agent or account manager:

Recall to Work Sample Letter

PAYCHECK PROTECTION PROGRAM

As we begin to approach the forgiveness stage of the Paycheck Protection Program, more and more questions are coming up – to which we still do not have answers. But here are a few that we have guidance on, and then the ones to be the most careful about during the loan periods that are ongoing:

Will a borrower’s PPP loan forgiveness amount be reduced if the borrower laid off an employee, offered to rehire the same employee, but the employee declined the offer?
The Small Business Administration (SBA) has announced that they intend to allow these refusals to work to not count against the employer in terms of loan forgiveness. However for this to apply, the borrower must have made a good faith, written offer of rehire, and the employee’s rejection of that offer must be documented by the borrower. Employees and employers should be aware that employees who reject offers of re-employment may forfeit eligibility for continued unemployment compensation.

Good Faith Certification concerning Economic Need for PPP Loan
With a great deal of back and forth over the last couple weeks, the SBA issued additional guidance on this issue – both parts of it resolve much of the uncertainty that the loans made to some large, publicly traded companies created a couple weeks ago. Here is the summary:

  • If your loan amount was less than $2 million (for the company or in total among its affiliates), the SBA will deem that the employer has made the required certification about the necessity of the loan and there are no good faith concerns for those employers.
  • For loan amounts of $2 million or more, the SBA has said that borrowers can make the required necessary certification in good faith based on their individual circumstances and that these loans will be subject to review by the SBA for compliance with program requirements. The SBA announced if they determine that a borrower lacked an adequate basis for the required necessity certification, and the borrower repays the loan after receiving notification from the SBA that forgiveness is not available for their PPP Loan, there will not be any administrative enforcement pursued against the borrower.

All in all, we believe that the SBA is trying to focus their attention on the largest group of borrowers and trying to ease the fears of smaller employers who were the intended beneficiaries of this program.

What about all the various questions about forgiveness I have?
We know that there are a ton of questions that remain unanswered by the SBA about how the forgiveness process will work. We have been told that we should expect answers in the next week or so, and will follow-up when we receive that information. Many folks are concerned about lining up payroll and other spending, and we would encourage you to remember to be very mindful of the following:

  • Loan periods begin not when you choose, but when the borrower receives the first distribution of the loan. That means that the eight-week period has started and what you intend to use those loan proceeds for is occurring now.
  • Keep good records. While we don’t know any real details, the importance of being able to closely track the payroll costs and permitted expenses on which PPP loan monies were spent will be a vital part of the forgiveness process.
  • As it relates to calculating health care costs for use of funds and forgiveness, remember that only the employer share of health insurance or health benefit plan costs are counted toward PPP Loan forgiveness. You cannot use dental or vision or other benefit costs to count toward the amounts which could be forgiven.
  • Finally as we get closer to forgiveness submissions, don’t forget that our team will assist with providing certifications related to costs for health benefits which will be especially tricky for self-funded groups and those who use Health Reimbursement Arrangements. Reach out to your Eben team member to assist with this information.

If you have any questions, please reach out to our team and we’ll share what we know.

COVID-19 RELATED CHANGES

With so much about benefits being impacted by the COVID-19 pandemic, there have been many changes that you should be aware of for which we will provide separate communication. Under guidance issued over the last few days, here are four specific areas about which you should be aware and determine how you want to handle as an employer:

Flexible Spending Account Changes.
For those employers who offer Flexible Spending Accounts (FSAs) to their employees, the following changes are now allowed (but are not required) to be adopted by employers for FSAs which are current in the midst of their plan year:

Employees would be allowed to enroll, disenroll or make changes to the amount set-aside in the FSA mid-year (outside of open enrollment) in either a health or dependent care account. These changes can be made any time before December 31,2020 on a prospective basis. However, the employee would not be able to decrease their election below the amount of claims already reimbursed. The intent is to allow employees that might be affected by delays in medical services to make a change, as opposed to forfeiting the unused balances, due to COVID-19.
For plans that end during 2020, employees may use any money remaining in their 2019 accounts on expenses which are incurred before the end of this calendar year
The amount that can be carried over (if the plan allows carryovers) will increase to $550 for plans that begin January 1, 2020 and after.

The last one is a permanent change and the carryover amount will be adjusted from time to time in the future.

Health Insurance Changes.
Under the new rules, employers may allow their employees to make an off-renewal (mid-year) change to benefits. This would allow, until the end of this year, an employee to add or drop coverage for themselves or their eligible dependents, and include allowing someone who previously waived coverage to now enroll. However, if an employee drops health coverage, that employee must complete a signed Attestation indicating the they have or will immediately have other comprehensive health coverage. Employer should keep a copy for their records.

Employers are not required to allow this to happen, but if you decide to allow this, you must take action to allow this by adopting an amendment to your premium-only conversion (POP) plan document and then communicate this change to your employees. We are checking with our health insurance carriers to determine if any will not allow these changes if adopted.

For these two issues, please let us know if you want to adopt any of these changes.

Deadlines Extended for COBRA and Special Enrollment Events on Group Health Plans
Multiple COBRA deadlines have been extended until after the outbreak period ends, including (1) the 30- or 60-day deadline for employers or individuals to notify the plan of a qualifying event; (2) the 60-day deadline for individuals to notify the plan of a determination of disability; (3) the 14-day deadline for plan administrators to furnish COBRA election notices; (4) the 60-day deadline for participants to elect COBRA; and (5) the 45-day deadline in which to make a first premium payment and 30-day deadline for subsequent premium payments. For example, if you have someone who is in the middle of their election period, they will have until after the outbreak period ends to elect COBRA and then even more time after that to make their initial payment.

Also the deadline for an employee to notify their employer for a HIPAA Special Enrollment event has been extended. Ordinarily, an employee has 30- or 60-days to make a mid-year change related to birth, marriage, adoption, or placement for adoption such as adding a new dependent, dropping someone from coverage, or making other permitted changes. Now, that period has also been extended to last until at least the end of the outbreak period. It is anticipated that the outbreak period for this purpose will last until late May or June.

EEO-1 Reporting for 2020 Delayed
The EEOC announced that they are delaying the anticipated opening of the 2019 EEO-1 Component 1 and the 2020 EEO-3 and EEO-5 Data Collections to a date to be determined in January and March 2021.

EMERGENCY PAID LEAVE AND FMLA EXTENSION

Additional guidance has been issued on some common questions that have come up from employers about EPL/EFMLA in the last few weeks.

My employees have been teleworking productively since mid-March without any issues. Now, several employees claim they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19, even though these employees have been teleworking with their children at home for four weeks. Can I ask my employees why they are now unable to work or if they have pursued alternative child-care arrangements?

You may require that the employee provide the qualifying reason he or she is taking leave, and submit an oral or written statement that the employee is unable to work because of this reason, and provide other documentation.

While you may ask the employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act. The fact that your employee has been teleworking despite having his or her children at home does not mean that the employee cannot now take leave to care for his or her children whose schools are closed for a COVID-19 related reason. For example, your employee may not have been able to care effectively for the children while teleworking or, perhaps, your employee may have made the decision to take paid sick leave or expanded family and medical leave to care for the children so that the employee’s spouse, who is not eligible for any type of paid leave, could work or telework. These (and other) reasons are legitimate and do not afford a basis for denying paid sick leave or expanded family and medical leave to care for a child whose school is closed for a COVID-19 related reason.

This does not prohibit you from disciplining an employee who unlawfully takes paid sick leave or expanded family and medical leave based on misrepresentations, including, for example, to care for the employee’s children when the employee, in fact, has no children and is not taking care of a child.

How does the normal scheduled closing of school for summer impact eligibility for EPL or EFMLA?

Under guidance issued by USDOL, they clearly indicated that an employee may not receive Emergency Paid Leave or Extended FMLA once their children’s school is closed for summer vacation. If the school is closed for any other reason other than COVID-19, then EPL/EFMLA are not available. But keep in mind that the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.

Remember, if you have specific questions, do not hesitate to reach out to your primary contact with EbenConcepts/OrchestrateHR.

RETURN TO WORK

With the return to work happening throughout the country at different paces, we have received a number of questions about these issues. Some of them were addressed above, but we wanted to share the following:

I have an employee who wants to keep working from home even though Remain-at-Home Orders have been repealed or loosened. Do I have to allow that?
The short and simple answer is no. EEOC recognizes there could be situations where an employee may state some disability-related reason, but generally the employer may inquire about and understand the disability-related limitation that necessitates an accommodation, but a continued work-from-home accommodation is not required. EEOC notes that if there is a disability-related limitation that can be addressed with another form of reasonable accommodation at the workplace, the employer can choose that alternative over telework.

Do you have any good sites about return to work?
The CDC has released guidelines about workplace safety that we would encourage you to review: https://www.cdc.gov/coronavirus/2019-ncov/downloads/community/workplace-decision-tree.pdf

In addition, we found this from the Minnesota Chamber of Commerce (you don’t have to be a member to access) to be very helpful for employers of all sizes as they consider return to work issues: https://www.mnchamber.com/blog/covid-19-prevention-best-practices

What do I do about Employees Who Refuse to Return to Work?
One of the downsides of the CARES Act supplement to unemployment is that some employees who were displaced during this economic downturn due to COVID-19 are making more money than when they were working. We’ve heard from many, many clients about this problem. So what can you do?

Unemployment officials in some states have announced that refusing an offer to return to work “potentially disqualifies claimants from receiving those benefits.” State officials have instructed employers to notify them if an employee refuses to return to work then they may lose unemployment, including the $600 per week supplement. USDOL confirmed this position in its guidance, stating “[B]arring unusual circumstances, a request that a furloughed employee return to his or her job very likely constitutes an offer of suitable employment that the employee must accept.” They also noted that anyone who is out on unemployment must still complete the weekly certification process and that employers should report that an employee has been offered work and is therefore no longer unemployed.

It’s important to keep good records that an offer was made and that the employee received it and still refused. We have developed a sample letter to assist with this and have attached to this letter.

OTHER ISSUES RELATED TO COVID-19

Credits on Dental Insurance vs. Payroll Deductions
With a number of dental carriers offering discounts/credit or reduced premiums for a period of time, we have been somewhat torn about this issue and how to best handle it but have now settled on the following (based on how the dental premium is being paid):

Group and Employee Contribute to the Cost:

• Option 1: reduce employee contributions by the discount percentage during the applicable period for those products (e.g. carrier giving credit for 25% of premium paid in April and May, so reduce employee contributions by 25% for May and June).

• Option 2: keep them the same as current but determine what the amount should have been in terms of employee contributions, and reduce employee contributions by that amount at the next renewal

Group Only Pays for Cost: This is easy – the employer keeps the money.

Voluntary (Employee Pays 100% of Cost from Payroll Deductions): With these issues, the employer has no choice but to reduce the employee paycheck withholdings during this period since the employer is simply a passthrough for those premium dollars.

Finally, the group should communicate this change to the impacted employees, but the mechanism does not need to rise to the level of a summary of material modifications. We would suggest a simpler communication that might read:

Dear Employee, due to the current health situation and its impact on the availability of certain providers, our dental insurance carrier has reduced the amount that is owed to them by xx% over a ________ period. We will be adjusting payroll withholding to reflect this change (or will give you credit at renewal – whichever way the employer does it).

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