We will continue to update this guidance as news changes, and in response to questions we receive from our members. Please bookmark this page to keep up-to-date on the latest HR guidance.
Last updated: September 15th, 2020 at 3:15pm PT / 6:15pm ET
Watch our webinar series and hear real-time payroll, HR and tax best practices as the Coronavirus continues to impact the cannabis industry and it's workforce.
What is the Families First Coronavirus Response Act?
|September 15th, 2020: DOL Revises FFCRA Leave Rules|
|In response to a court ruling in early August that invalidated certain regulations by the US Department of Labor (DOL) related to leave under the Families First Coronavirus Response Act, the DOL has released revised regulations. The changes, or lack of changes, are outlined below. The revisions take effect when they are published in the Federal Register, which is scheduled for September 16.
Definition of Health Care Provider
The definition of health care provider for purposes of whom an employer can deny leave to is revised to include physicians and others who make medical diagnoses (the same as under traditional FMLA); employees who provide diagnostic services, preventive services, treatment services, or other services necessary for patient care; and employees who provide services that, if not provided, would adversely affect patient care.
This definition is narrower than the previous rule. For example, nurse assistants and laboratory technicians who process test results are considered health care providers, but IT workers at a hospital and medical billers are not.
Documentation Prior to Leave
Employers may require that employees provide documentation to support their need for leave as soon as practicable.
The old rule said that employers could require documentation before the leave started, which isn’t always practical.
Leave During a Furlough or Business Closure
Emergency Paid Sick Leave (EPSL) and Emergency FMLA (EFMLA) are still available only if an employee has work available for them during the time that they need the leave.
This is the same rule as before; the DOL just explained its reasoning.
Approval for Intermittent Leave for Childcare
Employees still must get approval from their employer to use intermittent leave. However, the DOL has made it clear that leave is not considered intermittent if a school or daycare is closed on certain days or half days. For example, if the employee’s child’s school has a hybrid schedule with in-person classes on Tuesdays and Thursdays, but remote learning on Mondays, Wednesdays, and Fridays, then the employee would need leave on Mondays, Wednesdays, and Fridays, with each day being a separate leave event. In other words, the employee is not requesting intermittent leave in this scenario, so they do not need their employer’s consent.
This is the same rule as before; the DOL just explained its reasoning and provided some clarification.
For certain circumstances related to COVID-19, employees will be eligible for:
- Up to two weeks of sick leave (full pay for self, 2/3 pay for family care) for illness, quarantine, or school closures
- Up to 12 weeks of Family and Medical Leave Act (FMLA) leave for school closures (10 days unpaid and then up to 10 weeks at 2/3 pay)
- The FMLA and Paid Sick Leave sections discussed below will go into effect on April 1, 2020 and expire December 31, 2020.
- It appears there is no retroactive application.
- FMLA expansion
- Paid sick leave
- Payroll tax credit
- Group health plan benefit mandate
Wurk is concerned that cannabis companies will be required to bear the burden of extended employee benefits without the protection and relief offered to traditional employers. This makes cannabis companies disproportionately vulnerable to the Coronavirus impact. We are closely following and supporting the efforts of national trade associations such as National Cannabis Industry Association, to ensure cannabis businesses are treated like every other business in America.
Employers with fewer than 50 employees may claim an exemption from the emergency paid leave provisions of the Families First Coronavirus Response Act (FFCRA), and the exemption applies specifically to leave taken for reasons of child care and school closures related to COVID-19, according to a U.S. Department of Labor (DOL) guidance updated March 28. More info.
What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?
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.
Can I access funds from my 401(k)?
The CARES Act includes provisions that may temporarily allow qualified plan participants (you) to access retirement funds within your employer-sponsored retirement plan.
If you are a qualified individual, you may withdraw up to $100,000 from your retirement account and/or request a participant loan of up to $100,000. Note: Loans must be originated prior to September 23, 2020. Withdrawals must be completed before December 30, 2020. Additionally, loan repayments – on new and existing loans – with due dates during the period March 27, 2020 to December 31, 2020 can be postponed until 2021 for qualified individuals.
Are marijuana businesses eligible for SBA loans and other federal programs?
Because the cultivation and sale of marijuana is illegal under federal law, marijuana businesses and certain ancillary businesses are not eligible to participate in many of these programs. For example, the SBA recently confirmed that marijuana businesses are not able to access the SBA funded programs including the EIDL Program, even though marijuana businesses are as equally harmed by the coronavirus pandemic as other law-abiding, tax-paying small business operators.
While SBA has not formally addressed the eligibility of marijuana businesses for the broader Paycheck Protection Program, it appears prior SBA regulation and policy guidance may prohibit access to this program by marijuana businesses and certain other types of businesses.
More information from Vicente Sederberg, cannabis law firm.
Emergency Loan Guide from the US Chamber of Commerce.
How do I support my employees as they return to work?
Ready to bring employees back to the workforce? Take a look at our Return to Work Checklist.
What should I tell my employees about COVID-19?
Appoint key members to monitor communications
Ensure a member of your leadership team can take point on monitoring daily updates from the Centers for Disease Control and Prevention (CDC), the World Health Organization (WHO), federal agencies and other global health organizations. Share information with your team as necessary.
Increase sanitation and share best practices
Communicate with your team regarding how you are keeping the workplace safe by increasing sanitation practices and encouraging people who feel ill to stay home. Post simple everyday practices on printed signs at your operation that reiterate hand washing, covering coughs and sneezes, and avoiding touching the face. Encourage employees to use hand sanitizer after managing cash transactions.
If you have physical time clocks or kiosks for punching in-and-out, learn how to properly sanitize them here.
Implement pre-ordering, curbside pickup and delivery (where available)
Encourage customers to order online before coming in store to minimize traffic and social interactions. Have processes in place for efficient and secure check-out and delivery. Limit traffic in store to 2 patients or customers at a time for the protection of your visitors and employees.
Infographic: How Patients and Consumers Can Safely Purchase Cannabis During the COVID-19 Pandemic
Sick leave and PTO policy communication
Provide guidance to employees on your illness and sick leave policy as remote work is typically not an option in cannabis. Monitor your state's recommendations and emergency rules related to paid sick leave for COVID-19 testing.
Document details on any sick leave or other time off that your employees are taking during this time. Tracking this time under separate Time Off codes in Wurk will allow you to react to changes in state or federal requirements that may still be announced. Questions? Contact Support.
Offer direct deposit payments
Wurk highly encourages direct deposit enrollment for all clients (see below). By opting into direct deposit, you can minimize and/or avoid impacts of potential payroll delivery delay due to mail service delays or employee constraints.
Here is more information about how employees manage direct deposit settings in Wurk.
Update contact information
Without causing alarm, it is best practice to remind employees to update their emergency contacts and beneficiaries. Read more about how employees can do this in the Wurk system.
Extra precautions for the workplace
- Hang posters from the CDC
- Disinfect surfaces like doorknobs, tables, desks, and handrails regularly
- If in-person meetings are necessary, hold them in open, well-ventilated spaces
- Eliminate shared food
How should I manage a hiring freeze, layoffs and more?
In the event that you need to slow hiring during this time, ensure you:
- Communicate with candidates that openings are temporarily on hold
- Continue with virtual pre-screens and interviews to ensure you have talent when doors open again
- Update job postings and your career webpage to notify applicants of a longer timeline to hire
Wurk understands this is a difficult time and is here to support your business. Our team of certified HR Business Partners can assist you in developing labor policies, creating employee communications, implementing payroll best practices, and more. Contact us today for more information.
Read our post, How to Approach a Workforce Reduction if your business is facing layoffs.
Click here for US labor resources per state.
How do I manage pay and benefits if my employees are not working?
In most circumstances and states, when employees are not actually working, you aren’t obligated to pay wages so the normal rules about rates of pay don’t apply. If you're in this situation, there are some common best practice solutions:
- Pay everyone for their normal number of workweek hours, but at a reduced rate of pay.
- Issue a set per diem or stipend to help your employees pay their bills.
Group Health Plan Coverage
You need to check your group health plan document (or certificate of coverage if your plan is fully insured) to determine how long employees who are not actively working may remain covered by your group health plan. Once this period expires, active employee coverage must be terminated (unless the insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive applicable eligibility provisions), and a COBRA notice must be sent. If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agree to cover claims relating to participants who would otherwise be ineligible for coverage.
In the normal course of events, group health plan coverage will cease when an employee’s share of premiums is not timely paid. However, several actions might be taken that could allow coverage to continue.
First, the insurance carrier providing the health coverage may voluntarily continue the coverage while the disaster is sorted out and until an employer reopens its doors. More likely, the employer may make an arrangement with the insurance carrier providing health coverage to pay the employees’ share of premiums to keep coverage in place (at least temporarily) and possibly until the employer can reopen its doors. Each situation will be different, depending upon the insurance carrier and the relationship between the employer and the insurance carrier. Therefore, each factual situation will need to be individually assessed.
COBRA Administration services in the coming weeks and months will be necessary. Contact Wurk today for discounted services.
What is Wurk doing to prevent business interruptions?
Wurk management has effectively communicated best practices in office safety and health to all employees.
In order to maintain operational excellence, the following actions have been put into place until April 10, 2020. At that time, further applicable communications will be released.
Redundancy plans for key customer facing departments
Wurk is making sure multiple stakeholders can perform critical tasks. All departments whose role includes supporting customers before, during and after payroll processes will include added redundancy to ensure our clients' payroll continues to be processed without interruption.
Wurk is currently enforcing travel restrictions for all personnel. Travel has been cancelled for all key customer resource teams and non-essential business travel is restricted for all Wurk employees.
Minimizing internal risks to ensure system and process continuityBack to Top
In addition to strict travel restrictions, Wurk has implemented a remote working protocol. This means that Wurk employees will work remotely to reduce the volume of employees interacting within the corporate office. In addition to the health and well-being of our team, security and system availability remain our highest priorities.
If physical mail services are affected (i.e. FedEx, USPS, UPS), how can I minimize affects on paper printed paychecks?
Wurk highly encourages direct deposit enrollment for all clients. By opting into direct deposit, you can minimize and/or avoid impacts of potential payroll employee constraints on all stakeholders involved.
Contact Wurk support at 720-707-1676 to learn more about opting in to direct deposit services (restrictions apply).
Here is more information about managing your direct deposit settings in Wurk.
Do you have any templates or HR communication tips?
Partner with your Human Resources team, refer to your Employee Handbook, and continue to monitor communications from health organizations when generating communications for your team.
Download Wurk's Coronavirus (COVID-19) sample communication to employees.
Be clear with employees: if they have cold or flu-like symptoms, request that they alert their team lead, stay home, and seek medical guidance. If employees have a fever, they should not come to work until they are free of fever for at least 24 hours without the use of fever-reducing medicine.
How else do I help reduce disruption to my employees?
Being proactive is key to preventing major business interruptions. Please see the following links for recommendations. Encourage all employees to enroll in direct deposit and update their emergency contacts. In addition, make sanitation a priority and ensure daily cleaning of all equipment, including punch-in kiosks and time-clocks.
Where can I find more information about Coronavirus?
We recommend using The World Health Organization as a source for more information regarding the COVID-19 outbreak.
Programs for income replacements, sick day policies, and more
Postponing the federal income tax payment deadline
The Internal Revenue Service (IRS) is postponing the April 15 federal income tax payment deadline (including payments of tax on self-employment income) for 90 days, without any interest or penalties. This means that you’ll have until July 15 to make your tax payment, but you must still file your tax returns by the normal deadline date of April 15.
Federal Family Medical Leave Act (FMLA)
State Labor Resources
Click here for US labor resources per state updated in real-time.