DOL Publishes Additional COVID Guidance; IRS Issues Guidance on FFCRA Leave and W-2 Reporting
The U.S. Department of Labor’s Wage and Hour Division (WHD) has published additional guidance to provide information to workers and employers about how the requirements and protections of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA) and the Families First Coronavirus Response Act (FFCRA) impact the workplace as America continues to reopen. The new guidance provides plain-language questions and answers addressing critical issues under all three laws.
This guidance published on July 20 adds to a growing list of compliance assistance materials published by WHD, including a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers resource about paid sick and expanded family and medical leave under the FFCRA. Available guidance also includes two posters, one for federal workers and one for all other employees, that fulfill notice requirements for employers obligated to inform employees about their rights under the FFCRA. The guidance also includes Questions and Answers about posting requirements and simple Quick Benefits Tips to determine how much paid leave workers may take under the FFCRA.
Additionally, the Internal Revenue Service (IRS) issued Notice 2020-54 stating that employers are required to report the amount of qualified sick and family leave wages paid to employees under the FFCRA on Form W-2. Specifically, covered employers must report the amount of qualified family leave wages paid either in Box 14 of Form W-2 or on a separate statement. The amount must be labeled using language similar to “sick leave wages subject to the $511 per day limit” or “sick leave wages subject to the $200 per day limit” or “emergency family leave wages.”
By now, employers should be familiar with the alphabet soup of leave provisions (FMLA, EFMLA, EPSL, PTO, etc.) available to those affected by COVID. As an additional resource, we have updated our COVID leave flowchart to include employers whose employees have the ability to telework.
DOL Issues Revised Optional FMLA Forms
The U.S. Department of Labor (DOL) Wage and Hour Division (WHD) has revised the forms employers and employees may use to meet their notification and certification obligations under the FMLA. In a statement announcing the changes, the DOL said the forms were revised with substantial public input, which was solicited in August 2019. They include more questions that users can answer by checking a response box and electronic signature features to reduce contact. The following forms were revised:
- Eligibility and Rights and Responsibilities Notice, Form WH-381
- Designation Notice, Form WH-382
- Employee’s serious health condition, Form WH-380-E
- Family member’s serious health condition, Form WH-380-F
- Qualifying Exigency, Form WH-384
- Military Caregiver Leave of a Current Servicemember, Form WH-385
- Military Caregiver Leave of a Veteran, Form WH-385-V
The FMLA requires that certain information be provided by employers and employees. This information may be conveyed in any format, and the WHD forms are not required to be used for that purpose. WHD FAQs also clarify that the prior versions of these forms, including forms with expiration dates that have passed, may still be used.
Additionally, the DOL has issued a Request for Information (RFI) about FMLA regulations. The RFI invites those who have knowledge or experience with the FMLA to submit comments, information and data on the effectiveness of the regulations in meeting the objectives of the statute, including the definition of “serious health condition” notice requirements and intermittent leave issues.
First Round of 2020 Draft ACA Forms Released
The IRS released draft 2020 forms for reporting under Internal Revenue Code (Code) Section 6056. Forms 1094-C and 1095-C are draft versions of forms that will be used by applicable large employers (ALEs) to report under Section 6056, as well as for combined Section 6055 and 6056 reporting by ALEs that sponsor self-insured plans. Please note that the draft instructions for Forms 1094-C and 1095-C have not yet been released.
The Forms 1094-C and 1095-C are substantially similar to the final 2019 versions. However, the draft Form 1095-C includes:
- A new section to enter the employee’s age on Jan. 1;
- Additional codes in Code Series 1 related to offers of individual coverage health reimbursement arrangements (ICHRAs); and
- A new section to enter the zip code used to determine affordability for an ICHRA, if one was offered to the employee.
Employers should become familiar with these forms for reporting for the 2020 calendar year. However, these forms are draft versions only and should not be filed with the IRS or relied upon for filing.