My Employee (CONT’D FROM PAGE 24)
ly important to ensure the documentation meets the IRS’s requirements to ensure eligibility for those tax credits. Q: I recently cut pay for all my staff. Can I pay an employ- ee on leave at that new, lowered rate? A: No. The payment for FFCRA leave is based on a “look- back” approach: this is calculated using an average of hours and pay over the 6 months prior to the leave be- ing taken. This should be undertaken carefully to ensure accuracy, particularly for employees who have a complex compensation structure (such as commissions). Q: My business is small and we’re really suffering here. Is there any relief? A: Small businesses (under 50 employees) can avoid pro- viding the childcare-related leave, if any of the below fac- tors are met: • Providing leave would economically threaten the busi- ness’ ability to operate; • The employee has a specialized role in the business and the absence would threaten the Company’s finan- cial health or operations; or • The employer can’t find enough replacement workers to cover for the employee requesting an absence. This analysis should be undertaken closely with coun- sel and documented appropriately. Q: I believe my business is exempt from the leave re- quirements under the federal law; can I just deny the leave? A: Not automatically. Each leave situation should be care- fully analyzed. While there are exclusions to the federal leave law for employees and businesses working on com- batting COVID-19 (primarily but not exclusively in health- care), many states have enacted their own laws to address issues surrounding this pandemic, and may not have the same exclusions as the federal law. In addition, the pre-ex- isting legal framework (such as the regular FMLA, state family leave laws, and disability protections) could also ap- ply to a given leave situation. If after a detailed legal analy- sis, employers believe they have grounds to deny a leave of absence (or refuse to pay for the leave), they should document why they believe a particular leave of absence is not covered. In Conclusion: Tread Carefully The stakes here are high, with the potential for signif- icant liability (unpaid wages, liquidated damages, attor- neys’ fees and costs), so these issues should be carefully analyzed with experienced counsel. If you have any spe- cific questions or concerns, please contact counsel. Joel J. Greenwald, Esq. is Managing Partner at Greenwald Doherty LLP. Reach him at (845) 589-9300 x108 or via e-mail at jg@greenwaldllp.com.
26
www.boardconvertingnews.com
April 20, 2020
Made with FlippingBook Publishing Software