The Overlap of the FFCRA, Unemployment, and Work Comp in Wisconsin.
Mar. 2020
COVID-19 update: Today, 3/31/20, is the last day for employers to lay off employees prior to FFCRA becoming effective. A few key points for Wisconsin employers and worker’s compensation carriers:
Question #1: If an employee is laid off today (or some prior date), what can they collect? They would qualify for Unemployment. Also, per the CARES stimulus, the amount of the Unemployment benefit increases. That said, you need to make sure there is not a pending worker’s compensation (WC) claim where the employer is accommodating work restrictions. If there is a WC claim pending, see Question 3.
Question #2: What if additional quarantine rules go into effect after today and/or the quarantine is tended longer than first anticipated? Starting tomorrow, 4/1/20, for an employer under 500 employees, FFCRA requires two weeks of Sick Pay and 10 weeks of paid Extended FMLA. The amounts of Sick Pay or Extended FMLA payments vary depending on whether the employee is full time or part time (see Question #7). An employee cannot collect more than the two weeks of Sick Pay even if the employee returns to work and then has to go back off work due to new quarantine concerns.
Question #3: What if there is a pending worker’s compensation claim? Do I re-start TTD benefits? It depends. If your employer is either doing FFCRA or voluntarily continuing pay (as some larger employers are doing), then you may not owe TTD benefit until the FFCRA/salary continuation ends. You should compare what is being paid each week to determine whether Temporary Partial Disability (TPD) is owed.
Question #4: What if the employer objects to the renewed TTD, as a) they were accommodating the employee, b) were forced to close, and c) they think the employee should go on Unemployment instead? Unfortunately, WC overrides Unemployment. If an employer shuts down, the employer is no longer accommodating work restrictions and WC benefits are owed unless the employer is somehow continuing wages. Here is a link to DWD’s website discussing TTD during shut downs: https://dwd.wisconsin.gov/wc/insurance/training/tpd/tpd_layoffs.htm
Question #5: Can an employee collect Unemployment and TTD/TPD at the same time? No. The employee needs to collect one or the other. And with the increase in Unemployment benefits under the CARES Act and waiver for the employee to look for work, employees may already be receiving Unemployment before you even know it. So, talk to your employee before restarting work comp benefits.
Question #6: Do I need to update the WKC-13? That depends on what is being paid and by whom. If the employer is doing salary continuation or FFCRA payments, I would not update the WKC-13 at this time. If the injured worker was laid off before FFCRA went into effect (or you have a large employer), and you restarted TTD benefits, then yes.
Question #7: If the employee is part-time, what would be paid? If the employer is covered by FFCRA, then the employer calculates the average wage over the past six months. This is then FFCRA wage. This wage is likely different than the average weekly wage for worker’s compensation claims. For part-time employees under a worker’s compensation claim, the wage may be expanded to full time unless certain exceptions apply. Or, if the employer is accommodating the light duty restrictions, you use the actual wage instead of the expanded wage to determine whether any Temporary Partial Disability (TPD) benefits are owed. COVID-19 lay offs may impact all of this. FFCRA eligible employees will receive something, but you will need to compare this to the actual wage to determine whether TPD benefits are paid.
Question #8: What does the employee need to do to collect Sick Pay or Extended FMLA? The employer is required to have the employee certify they are collecting these benefits due to a COVID-19 quarantine (there are several reasons). The employer needs this documentation to claim these payments on their tax returns. You should obtain the documentation of the payments and certifications for your WC files.
Question #9: What if the employee begins a new job while off on quarantine (as some employers – mainly grocery stores) are hiring? You would treat this as any other new employer after a WC injury. You obtain the wage records for the new employer and offset these wages against any TTD payments.
Question #10: What if the employer has under 50 employees and FMLA did not apply previously? The new laws apply to small business too, but the Department of Labor can provide exemptions. DOL has not yet provided guidance any the exemptions. We will continue to follow this situation as it develops. We anticipate additional clarification from the Dept of Labor in the coming days, as the exact exemptions have yet to be determined.
Question #11: Can short term disability (STD) off-set the Sick Pay and/or impact WC TTD payments? It depends. Maybe. If the reason for Sick Pay also allows the employee to qualify for STD and the amount of wages paid under STD is equal to or greater than what the employee is entitled for Sick Pay, there does not appear to be an issue in allowing the offset. However, keep in mind that employees are entitled to Sick Pay immediately, so any waiting period or other restriction imposed under a company’s STD plan will need to be accounted for. Also, WC can only offset for STD if the premium is 100 percent paid by the employer.
Question #12: Does the employer have any options if they are required to close, but want to avoid TTD being paid, and if yes, are there any key points in which the employer may want to do this? Yes, the employer can offer telecommute work. If the employer normally does not have telecommute work, they can have the employee watch safety videos or similar type work. The employer may want to do this especially if the injured worker was only part time, and TTD benefits would be expanded to full time. In other words, the employee will have a significant increase benefits from WC whereas the employer may be able to offer only a few hours of work each week to prevent this from occurring.