FAQ for Employers of Domestic Workers during COVID-19

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Park Slope Parents hosted a webinar on April 1st, 2020, to talk through your responsibilities as an employer during the era of coronavirus. When it comes to handling your responsibilities toward your domestic workers, the legal ins and outs can be daunting, but PSP is here to walk you through some key concerns and offer resources to support your nannies and house cleaners during this uncertain time.

 

WE ARE HAVING ANOTHER WEBINAR THIS SUNDAY!

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The Nuts and Bolts of Paying Your Nanny in the time of Coronavirus with HomeWork Solutions

Sunday, April 5th, 8 pm

Click here to register in advance!

Join Jay Schulze from HomeWork Solutions for a webinar on the Nuts and Bolts of paying your nanny. This webinar will spell out EXACTLY what needs to be done in terms of applying for CARES, FFRCA, retroactively paying on the books (and the pros and cons), and whether you should help your nanny file unemployment or pay them and get tax credits to help offset costs. We will also have a Q & A after he presents the most up-to-date information on Nanny Pay so register early so we can get your question in the queue.

 

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Please note that this is a list of resources to help guide you, but every case is different, and the regulations are changing all the time. You’ll need to contact your accountant, payroll company, lawyer, and small business resources to get answers specific to your situation.

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Disclaimer: This post has been written for educational purposes only by Park Slope Parents and was not meant to be legal advice and should not be construed as legal advice or be relied upon as such. The post may contain errors, inaccuracies and/or omissions, especially as the laws and policies are changing rapidly during this time.

 

Q: My nanny and house cleaner are not currently working for us as they have been sheltering in place. I can imagine that they are worried about their jobs and about being paid. Beyond their finances, I want to make sure that they are okay. What can I do?

A. First and foremost, beyond any legalities, keep in touch with your nanny or house cleaner and show that you care. If possible, FaceTime/Zoom/Skype them with your child(ren) and talk about what everyone has been doing. Have your kids make art and email it to your nanny. Make jokes about how messy your house is without your house cleaner, and, if you can, reassure them that you still need them. Take a photo of a mess in your house and send it to your nanny.

Most important is that you sit down and have a candid conversation with your nanny or house cleaner. How this looks depends on your relationships with these folks, and you want to tread lightly; these can be difficult conversations to have. Do not assume that their situation is dire or that they are somehow destitute; rather, first and foremost, show that you care. Showing concern can go a long way toward giving them some relief. Ask questions like:

  • How are you?
  • Are your family and friends healthy?
  • What do you need from me to help you stay safe? (You might suggest helping them order groceries, for instance.)
  • If they (or their family) are ill, provide support about what they can do to get healthy.
  • (If they have other employers) Are other employers paying you during the break?
  • Are you getting by financially? What can I do to help?

Also do your best to reassure them that you are planning on continuing to pay them if you can make that happen. You can share with them that you’ve read the Hand in Hand Shelter in Place information about keeping them safe.

 

Q: My nanny is working since my job is deemed essential. What can I do to make sure that both our families are safe?

A. Discuss good hygiene practices with your nanny and make sure that they have tools (e.g., hand sanitizer and wipes) to keep their own surroundings safe.

Beyond safety precautions, provide a letter in case they are questioned about being an essential worker. This is a letter that includes their name, your name and phone, your place(s) of employment, and why you are deemed an essential employer.

Other things you might do to help:

  • Pick up and drop off your nanny in a car. If you rent a car, take steps to make sure it is safe to drive.
  • Offer your nanny the ability to do laundry at your house if they don’t have laundry at home. This will protect both families.

 

Q. How can I best navigate all of the different laws and regulations?

A: Keep a record of what you’re paying your nanny and when. You’ll need to be able to show your nanny’s income. If you paid your nanny ahead of time not knowing when they would come back, make sure to keep a record of it (you could use a separate Google Calendar for payments).

 

Q: My nanny is mandated by NYS to stay home since I’m not an essential worker. What should I do?

A: In short—if you are still being paid, continuing to pay your nanny (if possible) is the right thing to do. Beyond the importance of doing right by your nanny, you’ll likely need their services again after the pandemic subsides, and you want to maintain a good relationship.

 

Q: I pay my nanny on the books. What kind of benefits is my nanny eligible for right now?

A: A whole suite of new regulations was just released on April 1, so the pieces will come together more clearly in the next days and weeks. In short, there is money out there for you and your domestic workers, but the relevant laws are complex. Since you have been paying your nanny on the books, they can enroll in city, state, and federal funding for sick leave, paid family leave, or unemployment. There is Paid Sick Leave and Paid Family Leave you can help your nanny apply for, and there are also tax credits you can receive for keeping your nanny employed. See this video from HomeWorkSolutions for a further explanation.

Note: The Payroll Protection Program (which offers forgivable loans to employers who retain their employees), is not available to household employers. The Secretary of the treasury has excluded them because they are not a business.

In addition to NYC Paid Safe & Sick Leave and Paid Family Leave, there is also the Families First Coronavirus Response Act (FFCRA), which mandates that employers pay their employees for family leave for up to 12 weeks (after April 1, 2020). This may be paid out at 100% or 66% depending on the situation.

Right now, it’s best to keep paying them as much of their regular paycheck as you are able to. This money should be offset by tax credits under the FFCRA.

It’s important to refrain from immediately firing your domestic worker or placing them on furlough; rather, continue paying them as much as you can, and they may be able to make up the difference with paid sick leave or paid family leave. Likewise, if you have lost your job and are getting unemployment, you may be able to pay your nanny’s wages from that money.

 

Q: We don’t pay our nanny on the books. What kinds of benefits is my nanny eligible for right now?

A: Even if you have not been paying them on the books, they are eligible for unemployment, paid family leave, and sick pay. Likewise, if your nanny is undocumented, they are still eligible. It’s important for you to look into the applicable regulations, as it’s possible that you or your nanny may face adverse consequences if one or both of you has not been in compliance with the law. 

Despite the fact that a nanny can file for unemployment even if they were not on the books,  their claim may be delayed or denied because there is no record of employment.  When this happens, the state may come to the employer to ask why they did not pay unemployment taxes in the past, and the employer may need to file and pay past due taxes as well as penalties and interest.  That is, if you paid off the books in 2019, you can go back and file and pay taxes for prior years or start paying them on the books as of 2020. If you’re going to do this, we recommend you work with a nanny pay service like HomeWork Solutions to make this happen. A nanny pay service can help you set up an employer identification number, open tax accounts, complete new hire reporting, and file and pay city, state, and federal taxes. This will take a few weeks to set up. There may be penalties involved, but these may be lower than what’s incurred by having your nanny sign up for unemployment and being found out that way.

If you furlough your employee (reduce hours/pay), your nanny may be eligible for some unemployment benefits.

Finally, New York has established Pandemic Unemployment Assistance (PUA) benefits to support those with insufficient work history to qualify for unemployment insurance.  You can learn more here.

 

Q: Do green-card holders paid off the books have any relief if I can't pay them in full?

A: Financial Relief provided by FFCRA and the CARES Act both require that and employee is paid on the books.  Without that, there is no employment record for the government to see when verifying eligibility for unemployment benefits (employee) or employer tax credits to reimburse for mandatory paid leave under FFCRA.

 

Q: Is it better for my nanny to fire them and make them eligible for unemployment or to continue paying them?

A: The new regulations laid out as of April 1 make the answer to this question unclear. From the government’s perspective, it’s preferable for you to keep paying your domestic worker —that way, everything is seamless, and unemployment numbers don’t shoot up. Also, the unemployment system cannot handle the stress being put on it now, and you can see that in the severe backlogs for benefits already being reported in most states.

In theory, the amount workers receive from paid family leave and/or sick leave should be higher than unemployment benefits. If you keep your employee and pay the mandatory paid leave provided by FFCRA for which they qualify, you will be reimbursed in full through the tax credits. So, again, the best practice is to keep paying your nanny, keep giving them access to advocacy resources, and keep checking back in as regulations settle out and more information becomes available.

 

Q: What if my nanny is uncomfortable coming to work and I’m an essential worker?

A: This is a difficult question. The best path forward is to be as collaborative as possible based on what your nanny is comfortable with. If their needs are based on pre-existing health conditions, you have a legal responsibility to make accommodations for their health and pay for their sick leave and paid family leave. Beyond that, work together to figure out the appropriate adjustments. For instance, you may need to think about ways to help them avoid taking public transport, or you may want to increase their pay rate in alignment with hazard pay. In any case, be as transparent as possible with your nanny about the risks you are running and the position that puts them in.

 

Q: Is my nanny still eligible for government benefits if they only work part-time?

A: Short answer—YES. Part-time workers are covered under the existing laws, with the stipulation that they must have worked for you for a year and for at least 80 hours total. Benefits start to become staggered when it comes to “days of rest,” which can be used for reasons apart from sickness or domestic safety. That is, nannies working less than 20 hours a week receive one paid rest day annually, while those working more than 30 hours receive three.

 

Q: In looking over the relevant laws, they seem to start as of April 1. What if I’ve paid my nanny before April 1 when they didn’t work?

A: It’s unclear if you will be reimbursed for payments to your nanny before April 1.

 

Q: How can I support my nanny during this time, especially if they are undocumented, working off the books, or otherwise vulnerable?

A: This is a particularly challenging time for workers who are undocumented or paid off the books. Even if you are not in absolute compliance with the law, you should be doing your best in terms of record-keeping—i.e., recording information on days and hours worked by your nanny, as well as rate of pay, amount paid, and paid time off. By maintaining these records, you are covering yourself as an employer under New York labor law, and potentially assisting your off-the-books nanny if they apply for unemployment insurance.

Aside from doing your due diligence in terms of record-keeping, try to put time, effort, and money into connecting your domestic worker with the relevant local advocacy organizations—for example, Make the Road, A Better Balance, and National Domestic Workers Alliance. Such resources provide not only information and financial support, but also community, which is of course a key source of solace in challenging times.

Finally, both now and always, it’s critical to maintain clear, open communication with your domestic workers. Check in with your nanny or house cleaner; see how they’re doing. If you keep that relationship strong, you’ll be able to both support them through the pandemic and continue working with them once life has returned to normal.

As seems to be the case with everything these days, guidelines and best practices are changing daily. This is a confusing and difficult time for a lot of people, and we are all trying to work through it while doing right by the people in our lives. If you have questions, reach out—Park Slope Parents is here for you!

 

Special thanks to Jay Schulze of HomeWork Solutions and to our panelists:

Rachel Kahan, Employer
Josie Jacob, Local Nanny
Elizabeth Saylor, A Better Balance
Gabriela Siegel, Make the Road, NY
Estee Ward, Make the Road, NY
Tatiana Bejar, Hand in Hand, Domestic Workers
Ben Goggins, Carroll Gardens Nanny Association

 

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