» Are you a business impacted by COVID-19? We are open and here to help you get the resources you need.
Mississippi Small Business
Development Center
Transforming Mississippi One Small Business at a Time

I Need Help Understanding the Employment Law Changes


Contents

Mississippi Specific Update- Mississippi Department of Employment Security

 

Federal Update- United States Department of Labor

 


Mississippi Specific Update- Mississippi Department of Employment Security:

On March 21, 2020, the Governor signed Executive Order No. 1462 due to the coronavirus COVID-19 pandemic to help employees and employers during this state of emergency. The changes associated with this include the following:

  1. Individuals receiving unemployment benefits will not be required to serve a waiting period week for initial claims filed from March 8, 2020, through June 27, 2020.
  2. Work search requirements that normally must be met to be considered eligible for Unemployment Insurance benefits shall be suspended beginning March 21, 2020, until June 27, 2020.
  3. All collection activities including, but not limited to, interception of state tax refunds, payment agreements, enrollment of liens, tax garnishments, and claimant overpayment garnishments shall be suspended until June 27, 2020.

The Department of Labor and The CARES Act also require that the MDES Unemployment Insurance poster be displayed in a prominent location in your organization and viewable by all of your employees.  The MDES Unemployment Insurance poster is available here.

For more information, please see https://mdes.ms.gov/unemployment-claims/covid19/

Frequently Asked Unemployment Questions related to COVID-19:

Q. Will my employees be eligible for benefits if they cannot work even if my business remains open and I have work for them?
A. Under the unemployment insurance laws, individuals who are separated from employment due to no fault of their own may be eligible for benefits. The determination would be made based on the circumstances of each case.

Q. If my business declines, or I need to close, lay off staff, or cut staff hours, will my Unemployment Insurance account be charged for any benefits paid to employees I had to lay off?
A. The current statute dictates that an employer’s account will be charged for benefits paid to result from a lack of work. MDES is monitoring and reviewing federal and state guidelines related to Covid-19 and may exercise flexibility where applicable in accordance federal or state executive orders.

Q.  If my account is charged for benefits paid to employees, will this affect my tax rate?
A. Based on current statute, an employer’s tax rate could be impacted by charges to their account; however, MDES is monitoring and reviewing federal and state guidelines related to Covid-19 and may exercise flexibility where applicable in accordance with federal or state executive orders.

Q. Can an employer who needs to temporarily lay off employees because of COVID-19 continue to pay health insurance premiums for the employee during the layoff period or will this negatively impact the employee’s unemployment benefits?
A. Continuing to provide health insurance will not impact your employee’s ability to receive unemployment benefits.

Q. I furloughed or laid off employees due to COVID-19.  Now, I am ready to reoffer employment to my furloughed or laid off employees.  What do I need to do?
 A.The employer has an affirmative duty to notify the state when someone has been offered suitable employment and has turned it down.  If an individual is laid off from a company because of COVID-19, then the same individual (who is receiving unemployment benefits) is offered suitable reemployment with the same company, but the individual turns down the offer, the company has 10 days from the date of the refusal to notify MDES in writing of the refusal. As long as the company notifies the department of the refusal within the timeframe outlined by law, the company may be eligible for non-charging benefits paid to the claimant. 

Employers can report an offer/refusal of suitable employment online: https://mdes.ms.gov/employers/online-transactions/report-separation-refusal-of-work/


Federal Update- United States Department of Labor:

The Families First Coronavirus Response Act (FFCRA) was signed into law on March 18, 2020.  Among numerous COVID-19 related actions, two areas significantly impact small employers: the FFCRA expanded the Family and Medical Leave Act and FFCRA created the Emergency Paid Sick Leave Act (allowing employers under 500 employees reimbursement of paid sick leave due to coronavirus).

The Department of Labor has been working diligently to create regulations to put the procedures and processes in place per the intent of the Act.  On April 1, 2020, the Department of Labor released a temporary rule issuing regulations pursuant to this new law, effective April 1, 2020.

The Department of Labor requires affected employers to post the FFCRA poster in a prominent location in your organization and viewable by all of your employees. The FFCRA poster is available here.

Emergency FMLA Leave Expansion Act:

Until the end of 2020, employers with fewer than 500 employees will now be required to provide all employees (employed for at least 30 days) with up to 10 weeks of paid FMLA. The first two weeks of the normal 12-week FMLA leave may be provided unpaid, but an employee may be able to be paid through the paid sick leave provision or other paid leave the employee has available.  If the employer can provide alternative telework, it may not have to grant paid leave under this Act.
 
Exemptions: Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

Qualifying reasons for leave are if the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Duration of leave and pay are determined by Full-time or Part-time status and the reason for leave:

Full-time employees are eligible for 80 hours of leave.  Part-time employees are eligible for the number of hours of leave that the employee works on average over a two-week period (except if caring for a child whose school or place of care is closed for reasons related to COVID-19).

  1. Employees subject to quarantine or isolation orders related to COVID-19, advised by health care provider to self-quarantine is experiencing symptoms of COVID-19 and seeking diagnosis are paid: employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
  2. Employees caring for an individual subject to a local quarantine or isolation order related to COVID-19 or is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury, is 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

If an employee is caring for a child whose school or place of care is closed due to COVID-19, a full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

  1. Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).  

Emergency Paid Sick Leave Act:

For the period of April 1, 2020 through December 31, 2020, Employers with less than 500 employees will receive a tax credit for providing required paid sick leave and family leave, plus related health plan expenses, and employers share of Medicare tax during leave to employees that are unable to work due to COVID-19.

Frequently Asked Questions related to FFCRA: FMLA and Paid Leave:

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.

 
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:

  1. employer employs fewer than 50 employees;
  2. 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
  3. an authorized officer of the business has determined that at least one of the three conditions described in the Question above.

The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety. 

Is all leave under the FMLA now paid leave?
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 ten days. This includes only 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.

What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?
Regardless of whether you grant or deny a request for paid sick leave or expanded family and medical leave, you must document the following:

  1. The name of your employee requesting leave;
  2. The date(s) for which leave is requested;
  3. The reason for leave; and
  4. A statement from the employee that he or she is unable to work because of the reason.

If your employee requests leave because he or she is subject to a quarantine or isolation order or to care for an individual subject to such an order, you should additionally document the name of the government entity that issued the order. If your employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, you should additionally document the name of the health care provider who gave advice.

If your employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, you may must also document:

  • The name of the child being cared for;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement from the employee that no other suitable person is available to care for the child.


Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate 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. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

What does it mean to be unable to work, including telework for COVID-19 related reasons?
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 my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?
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.

If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?
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.

May I collect unemployment insurance benefits for time in which I receive pay for paid sick leave and/or expanded family and medical leave?
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 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

If I elect to take paid sick leave or expanded family and medical leave, must my employer continue my health coverage? If I remain on leave beyond the maximum period of expanded family and medical leave, do I have a right to keep my health coverage?
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.

If I am an employer, may I require my employee to take paid leave he or she may have under my existing paid leave policy concurrently with expanded family and medical leave under the EFMLEA?
Yes. After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA, you may require that your employee take concurrently for the same hours expanded family and medical leave and existing leave that, under your policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if your employee (or a covered family member) is not ill.

If you do so, you must pay your employee the full amount to which he or she is entitled under your existing paid leave policy for the period of leave taken. You must pay your employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per workday and $10,000 in the aggregate, for expanded family and medical leave. If your employee exhausts all preexisting paid vacation, personal, medical, or sick leave, you would need to pay your employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per day and $10,000 in the aggregate. You are free to amend your own policies to the extent consistent with applicable law.

If I want to pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can I do so and claim a tax credit for the entire amount paid to them?
You may pay your employees in excess of FFCRA requirements. But you cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits. 

The Mississippi Small Business Development Center is an accredited member of America's Small Business Development Centers and is funded in part through a cooperative agreement with the U.S. Small Business Administration through The University of Mississippi. All opinions, conclusions or recommendations expressed are those of the author(s) and do not necessarily reflect the views of the SBA or The University of Mississippi. Reasonable accommodations for persons with disabilities and limited English language proficiency will be made if requested at least two weeks in advance.