COVID-19: Employer Guidance

We will continue to update Oregon veterinarians with important developments regarding COVID-19 that impact the veterinary community. We are all in this together.

We encourage owners to consult with their attorney and/or accountant for practice-specific advice about how to implement the policies and programs described below.

Vaccine Availability for the Oregon Veterinary Community

Employee Leave & Return to Work

Veterinary Team Members Who Have Confirmed or Suspected COVID-19 Infection or Exposure

In addition to medical advice or direction from the patient's healthcare provider and/or public health department, if you have specific questions about how a possible COVID-19 exposure or a confirmed case within your team or a team member's household could affect your practice, we encourage you to reach out to Dr. DeBess, State Public Health Veterinarian. We also encourage you to read and implement the Oregon Health Authority guidance below.

Employer Q&A

Jennifer Bouman-Steagall JD answered some employer questions regarding staffing issues during the COVID-19 pandemic, including:

  • What if an employee doesn't want to come to work because they're scared about COVID?
  • What options do we have if we find out that an employee is hosting group gatherings at their house despite the governor’s mandate?
  • Read her answers.

Sick & Paid Medical Leave

The Families First Coronavirus Response Act (FFCRA) has two main provisions that impact employers—the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. The Act provides for reimbursement of private employers that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons related to COVID-19.

FFCRA FAQ

Notice Required

Each covered employer must post notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises.

FMLA Expansion Act

The FMLA Expansion Act requires employers to provide paid leave if an employee is unable to work (or telework) due to a need for leave to care for a son or daughter under 18 years of age whose school or a place of care has been closed, or whose child care provider is unavailable, due to a public health emergency related to COVID-19. This Act took effect on April 1. Practices should also follow existing FMLA rules. This Act applies to employers with less than 500 employees. According to the Department of Labor FAQ, the only type of family and medical leave that is required to be paid leave is leave authorized under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days and when needed to care for a child, as indicated above.

Emergency Sick Leave Act

This also took effect on April 1 and applies to employers with less than 500 employees. It requires an employer to provide its employees with paid leave for up to two weeks when the employee is unable to work or telework for any of the following reasons:

  • (1) A local, state or federal order limits the employee's ability to work;
  • (2) The employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns (this could be because of the Employee or someone the Employee has contacted);
  • (3) The employee has COVID-19 symptoms and is seeking a medical diagnosis;
  • (4) The employee is caring for someone subject to an order or advice described in (1) or (2) above;
  • (5) The employee is caring for a son or daughter whose school or daycare is closed or the child provider is unavailable due to COVID-19; and, the catchall,
  • (6) The employee is experiencing any condition substantially similar to a condition specified by the government as related to COVID-19.

Sample COVID-19 Leave Policy

Jennifer Bouman-Steagall JD has shared a sample COVID-19 policy that employers may customize for their individual practice needs. It includes a sample form for employees requesting leave from the practice under the Federal Paid Sick Leave or Emergency Paid Family Medical Leave programs.

Employee Compensation Resources

You can use this as your own cheat sheet and/or you can give it to employees to help explain sources of compensation due to COVID-19 related events.

Tax Credit Available to Employers Providing Leave Under FFCRA

From the FFRCA FAQ:

58. When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

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:

  1. 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;  
  2. 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  
  3. 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.

59. If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such 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 Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.

The OVMA recommends that employers intending to use the small employer exemption seek advice from experienced Employment Law counsel prior to denying benefits.

Small Business Resources

In addition to traditional SBA funding programs, the CARES Act established several new temporary programs to address the COVID-19 outbreak.

SBA Economic Injury Disaster Loans Program

The Federal Small Business Administration (SBA) may be able to provide assistance through the Economic Injury Disaster Loans (EIDL) program. Congress approved up to $7 billion in low-interest disaster loans specifically to assist small businesses impacted by COVID-19. These loans can help small businesses meet financial obligations and cover operating expenses.

SBA Paycheck Protection Program (PPP)

The Paycheck Protection Program (PPP) is an SBA loan program that helps businesses keep their workforce employed during the COVID-19 crisis. It is designed to provide a direct incentive for small businesses to keep their workers on the payroll. SBA will forgive loans if all employees are kept on the payroll for eight weeks and the money is used for payroll, rent, mortgage interest, or utilities. The loan will be fully forgiven if the funds are used for payroll costs, interest on mortgages, rent, and utilities (due to likely high subscription, at least 75% of the forgiven amount must have been used for payroll). Loan payments will also be deferred for six months. No collateral or personal guarantees are required. Neither the government nor lenders will charge small businesses any fees. Forgiveness is based on the employer maintaining or quickly rehiring employees and maintaining salary levels. Forgiveness will be reduced if full-time headcount declines, or if salaries and wages decrease.

Employee Retention Tax Credit

The CARES Act includes an Employee Retention Tax Credit, a fully refundable tax credit for employers equal to 50 percent of qualified wages (including allocable qualified health plan expenses) that eligible employers pay their employees. It applies to qualified wages paid after March 12, 2020, and before January 1, 2021. The maximum amount of qualified wages taken into account with respect to each employee for all calendar quarters is $10,000, so that the maximum credit for an eligible employer for qualified wages paid to any employee is $5,000. The tax credit is available to small businesses who do not participate in the Paycheck Protection Program, and businesses of all sizes who had to fully or partially suspend operations at the direction of the government due to the COVID-19 outbreak or have gross receipts that are 50% less than the same quarter the previous year, until they reach 80% of their gross receipts. This is a refundable payroll tax credit, and the IRS will provide employers with methods to request advance refunds to get the money back faster.

Layoffs, Unemployment & Furloughs

Unemployment

The Oregon Employment Department is working with partner agencies nationwide and the U.S. Department of Labor to ask for additional unemployment benefits options related to COVID-19. If you must conduct layoffs or close your business temporarily due to the COVID-19 pandemic, your employees can file for unemployment.

Related to layoffs and employee unemployment claims, there has been a great deal of discussion regarding the CARES Act and its Paycheck Protection Plan. Indeed, as Joe Carlisle of Buckley Law PC explains, the guidance from the Small Business Administration and Treasury Department continues to evolve. Under the PPP, certain CARES Act loan proceeds may be eligible for forgiveness, but the amount of forgiveness is dependent, in part, on employers retaining or rehiring employees. However, because the Federal Government provided an additional $600 in unemployment benefits, some employers found that former employees declined rehire offers because the employee was receiving more in unemployment. As a result, employers who received CARES Act loans risked not being able to receive full loan forgiveness. The SBA and Treasury, however, recently clarified that employers who document efforts to rehire will not be penalized in terms of loan forgiveness. The SBA and Treasury also warned employees that they might risk their unemployment benefits if they refuse rehire. So, a word to the wise: if you are an employee and refuse rehire, you could risk losing your unemployment.

Furloughed Employees

Joe Carslile of Buckley Law PC urges employers to be mindful of a ticking clock when it comes to furloughed employees. Under Oregon law, employers have a limited amount of time following an employee’s termination to provide the employee with a final paycheck. In addressing an issue related to a local fast-food restaurant chain, BOLI stated its position that when a furloughed employee has not worked for 35 days, BOLI considers the employment to have been terminated for purposes of an employer’s obligations to provide a final paycheck. Even if those employees received payment for all time worked prior to furlough, the employer may not have paid the employee for their accrued paid time off believing that they could be brought back to work in the near future. 

Under BOLI’s position, if the employer has a policy by which it pays employees for accrued paid time off upon termination, an employee who has been furloughed and not worked for 35 days is entitled to payment of their accrued paid time off.  Further, BOLI’s position appears to be that the payment must be made within 24 hours of the 35th day of furlough. The penalty alone for not paying the employee could be as much as 8 times the employee’s regular daily wages for a 30-day period. However, an employer can limit the penalty to an amount equal to what is owed if the employer makes payment before or within 12 days of receiving a demand for payment from the employee. Obviously, this may come as a surprise to employers, especially those who were trying to do the right thing for their employees. Depending on your circumstances, it may be best to pay any eligible accrued paid time off upon the 36th day of furlough or as soon after the 36th day as possible to avoid or limit potential penalties.

Updated: 2021-01-13 08:00:00

Author: Oregon Veterinary Medical Association