Additional Guidance from DOL on FFCRA – including rules for small employer exemption and definitions of “health care provider” and “emergency responder”

Over the weekend, the Department of Labor (DOL) issued its latest round of guidance on the FFCRA’s Emergency Paid Sick Leave (EPSL) and Expanded FMLA (E-FMLA) requirements. The additional guidance is found in Questions #38-59 of DOL’s running Q&A document. Below are the highlights. You can find our initial write-up of the FFCRA, and our summaries of the DOL’s first and second guidances, here.

The FFCRA referred to a small business exemption for employers with fewer than 50 employees. Do we have any more information?

Finally we do! The DOL has confirmed that employers with fewer than 50 employees may be exempt from having to provide E-FMLA and EPSL Category #5 (leave to care for a child due to the school or childcare provider being closed/unavailable due to COVID-19). Note that this exemption only applies to E-FMLA and EPSL due to school/childcare closure – not to other types of EPSL.

In order to claim exemption from providing E-FMLA or EPSL Category #5, an authorized officer of a business with fewer than 50 employees must have determined that one of the following is true:

    1. Providing EPSL or E-FMLA would result in expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity;
    2. The absence of the employee(s) requesting EPSL or E-FMLA would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
    3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee(s) requesting EPSL or E-FMLA, and these labor or services are needed for the small business to operate at a minimal capacity.

We strongly recommend that the company maintain both the records and information on which the officer’s determination is based and a written record of the officer’s determination.

 

Can an employee take EPSL or E-FMLA to care for any child whose school or childcare is closed?

The FFCRA only provides leave to care for a “son or daughter” whose school or child care is closed or unavailable – not any child. The DOL has now clarified that “son or daughter” includes any “biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child.” So the key is that the child is that employee’s responsibility – EPSL is not available where the employee wants to care for someone else’s child.

 

If an employee used FMLA earlier in the year, does that impact EPSL and E-FMLA?

The DOL has clarified that E-FMLA counts toward the total 12 weeks contemplated under the FMLA. So, if an employee has taken FMLA within the last 12-months, their total regular FMLA and E-FMLA can’t exceed 12 weeks. Similarly, an employee who takes E-FMLA, will have that time counted against their annual FMLA entitlement.

 

What is a full-time employee for purposes of EPSL? What is a part-time employee?

For purposes of EPSL, a full-time employee is one who is normally scheduled to work 40 hours or more per week. A part-time employee is one normally scheduled to work fewer than 40 hours. This matters for EPSL, because it determines how many hours of EPSL the employee is eligible to receive.

 

Who is a “health care provider” for purposes of determining which employees can be denied EPSL/E-FMLA?

The FFCRA provides that employers can refuse EPSL and E-FMLA for “health care providers.” The DOL has now clarified that a health care provider is very broad. It includes anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.

“Health care provider” also includes anyone employed by an entity that contracts with any of these health care institutions to provide service or to maintain the operation of the facility. The DOL states that this includes anyone employed by an entity that “provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments” and anyone that the highest official of a state or territory (generally, a governor) determines is a health care provider necessary for that state or territory’s response to COVID-19.

However, the DOL encourages employers to be judicious with their reliance on the “health care provider” exemption in order to minimize the spread of COVID-19.

 

Who is an “emergency responder” for purposes of determining which employees can be denied EPSL/E-FMLA?

The DOL has also defined “emergency responders” very broadly, stating that it is an employee who is necessary for the provision of transport, care, health care, comfort and nutrition, or whose services are otherwise needed to limit the spread of COVID-19. The DOL states that this includes, but is not limited to, “military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.” In addition, anyone that the highest official of a state or territory (generally, a governor) determines is an emergency responder necessary for that state or territory’s response to COVID-19 is deemed to be an emergency responder.

However, the DOL encourages employers to be judicious with their reliance on the “emergency responder” exemption in order to minimize the spread of COVID-19.

 

Is my company required to return an employee to the same position after his or her leave?

The DOL says yes – in most circumstances. Employers can’t take an adverse employment action (firing, disciplining, etc.) against an employee for taking EPSL or E-FMLA. However, employees aren’t protected from employment action that would have impacted them regardless of their being on leave – such as layoffs or furloughs.

Employers with fewer than 25 employees also have some specific provisions that apply to an employee returning from E-FMLA. If your company is in that position, refer to Question #43 in the Q&A or contact your employment lawyer to discuss.

DOL Provides Additional Guidance on Families First Leave Provisions, Including Treatment of Employees on Furlough and Handling of Intermittent Leave

More Guidance from DOL on Paid Sick Leave and Emergency FMLA

Late Thursday the Department of Labor (DOL) issued more guidance for employers on the Families First Coronavirus Relief Act (FFCRA) emergency paid sick leave (EPSL) and expanded Family and Medical Leave Act (E-FMLA) requirements. The additional guidance is in the form of 22 new Q&As (#15-37 in the Guidance, which you can find here).

The guidance finally answered several important questions that had left employers confused by their obligations, including how to handle furloughed employees and whether intermittent leave is available to care for a child who is home from school or childcare because of a COVID-19-related closure.

Here are the key questions and answers from this new guidance:

What are the records the employee must provide and the employer must keep?

To be eligible for the tax credit, employers must require, and employees must provide, appropriate documentation in support of the reason for the leave. The documentation should include the employee’s name, the qualifying reason for the leave, a statement that the employee is unable to work (or telework) for that reason, and the dates for which they require the leave. While it appears that the employee’s own declaration will satisfy part of the requirement, the employee must provide documentation supporting the reason for the leave. Examples of such documentation are a copy of the Federal, State, or local quarantine or isolation order related to COVID-19, written documentation by a health care provider advising self-quarantine, or the notice demonstrating the closure of a school or place of care.

The DOL Guidance makes clear that this documentation must be retained by the employer to support the tax credit.

May EPSL and E-FMLA be taken intermittently?

Employees who are working at their usual worksite may use EPSL and E-FMLA intermittently only if the reason they are taking the leave is to care for a child whose school or childcare is closed or unavailable (Category #5) and the employer agrees. The DOL encourages employers and employees to collaborate to achieve flexibility in this area.

Employees who are teleworking may take EPSL and E-FMLA intermittently with the employer’s agreement, in whatever increments the employee and employer agree to. The DOL encourages employers and employees to collaborate to find ways to allow for a combination of telework and intermittent leave.

What happens if I close a worksite? Are employees eligible for EPSL/E-FMLA?

In general, employees are not eligible for EPSL or E-FMLA during the period when a worksite is closed. This is true even if the worksite closes on or after April 1, 2020 and even if an employee already has begun EPSL or E-FMLA leave. In this situation, the employee would receive EPSL or E-FMLA only for the period from April 1 to the date of the closure.

Are furloughed employees eligible for EPSL/E-FMLA?

No. If the employer implements a furlough because it does not have enough work or business, then the impacted employees are not eligible for EPSL/E-FMLA. Note that this remains the case even if the employer indicates that they plan to reopen.

Employees who are furloughed should apply for unemployment benefits.

If an employer reduces an employee’s hours, can employees use EPSL or E-FMLA to make up the difference?

No.

May I require employees to use other available paid leave (vacation time, PTO, etc.) to supplement the EPSL/E-FMLA pay? May I allow them to?

Employers may not require employees to use paid leave to “top off” their EPSL/E-FMLA pay, but may allow it if the employee wishes to do so.

What if I want to pay an employee their full pay during EPSL or E-FMLA even though they only receive 2/3 pay under the FFCRA?

Employers can choose to pay more, but they will not receive a tax credit for the excess payments.

When is an employee able to telework for purposes of the FFCRA?

An employee is able to telework (and thus ineligible for EPSL and E-FMLA) if the employer permits or allows them to perform work at home or a location other than their regular workplace and pays them their normal wages for such work.

When is an employee unable to work or telework?

An employee is unable to work or telework, and thus potentially eligible for EPSL, if the employer has work for them and one of the EPSL qualifying reasons keeps them from being able to perform that work (either at their worksite or via telework).

Do state and local “stay at home” and “shelter in place” orders constitute “quarantine or isolation” orders so as to satisfy Category #1 for EPSL?

The guidance doesn’t specifically address whether the current broad government orders to “stay at home” or “shelter in place” constitute a “quarantine or isolation order” as is required to fall under Category #1 for purposes of EPSL. However, language in one of the questions regarding workplace closures further supports what we already thought – namely that these orders do not meet the requirements for Category #1.

 

 

DOL Releases COVID-19 Mandatory Notice to Employees: What Do I Need to Do?

Yesterday, the Department of Labor (DOL) released the poster that all employers with fewer than 500 employees are required to display in the workplace that outlines employee leave rights under the Families First Coronavirus Response Act (FFCRA). A link to the poster can be found here.

This poster is required to be posted in a conspicuous place on the premises where employees can see it. However, given that many workplaces are now remote, the DOL has indicated that employers may meet their notice requirement by emailing the notice to employees or posting it on an employee information internal or external website.

For more resources and LP’s response to COVID-19, visit this webpage.

New Guidance on Families First Coronavirus Response Act – INCLUDING DESIGNATION OF APRIL 1st EFFECTIVE DATE

Since President Trump signed the Families First Coronavirus Response Act (FFCRA) on March 18th (see our summary of the FFCRA’s key employment provisions here), we’ve received two pieces of additional guidance – one relating to how the FFCRA’s emergency paid sick leave (EPSL) and emergency FMLA provisions (E-FMLA) will be interpreted and one relating to how businesses can take advantage of the dollar-for-dollar tax credit for payments of EPSL and E-FMLA.

Here are the key questions and answers coming out of each of those updates. In addition, at the end, we’ve highlighted a number of open issues and questions that remain unclear:

DOL Guidance on EPSL & E-FMLA

When does my business have to comply?

The Act is effective on April 1, 2020. This means that all covered employers (those with fewer than 500 employees) have to start providing these new types of leave on April 1st. There is a narrow exception that applies to employees who are health care providers or emergency responders, but otherwise, all businesses with fewer than 500 employees are required to comply by 4/1.

Are there any special provisions for my small business?

If your business has less than 50 employees and providing childcare-related EPSL and E-FMLA would jeopardize the viability of your business, your business may be eligible for the small business exemption. The DOL is preparing regulations to address the criteria for this exemption.  In the meantime, the DOL has advised that you maintain records showing the business impact of these requirements.

How do I determine whether my business has fewer than 500 employees?

The number of employees is counted at the time the employee’s leave is to be taken, including full-time and part-time employees, temporary employees, day laborers, and joint employees (regardless of whether the joint employees are maintain on your payroll) employed in the United States, including any employees on leave. Independent contractors are not considered employees for this purpose.

We understand that this creates a difficult framework for employers that are close to the 500-employee mark, but you will need to reassess if your company has at least 500 employees on a daily basis.

Are related businesses added together to determine whether the Company has 500 employees?

The DOL’s guidance says that, typically, a corporation (including its separate establishments and divisions) is considered to be a single employer, with all of its employees to be counted toward the 500-employee threshold.

Where a company has an ownership interest in another company, the question is whether they are joint employers under the Fair Labor Standards Act and/or integrated employers under the FMLA’s integrated employer test. If the companies are joint employers under the FLSA, then their employees are added together for purposes of EPSL. If the companies are integrated employers under the FMLA, their employees are added together for purposes of E-FMLA. Whether the various tests are met is a very fact specific determination, so we strongly recommend you seek legal counsel for this analysis.

How do I calculate hours of EPSL?

Full-time employees are entitled to 80 hours of EPSL. The number of hours of EPSL an employee receives is based on the number of hours they would normally be scheduled to work, including overtime. However, EPSL is capped at 80 hours over a two-week period. So, for example, an employee who is scheduled to work 50 hours a week may take 50 hours of EPSL in the first week and 30 hours of EPSL in the second week.

Part-time employees are entitled to leave for their average number of work hours in a two-week period. If the normal hours scheduled vary, you may use a six-month average to calculate the average hours.

How do I calculate payment for EPSL?

Payment is based on the reason for the employee taking the EPSL and the employee’s regular rate of pay, subject to certain caps, as outlined in our original guidance.

The DOL’s guidance clarifies that the amount paid is based on the employee’s regular rate of pay. You can determine regular rate of pay by taking the average of the employee’s regular rate over a period of up to six months prior to taking leave (or if the employee has been employed for less than six months, the average of the regular rate of pay for each week employed).

What if an employee is eligible for both E-FMLA and EPSL?

An employee who needs leave to care for a minor child whose school or place of care is closed or whose childcare provider is unavailable due to COVID-19 related reasons may be entitled to both E-FMLA and EPSL.

In this instance, the paid sick leave provision would provide two weeks of paid leave, which would overlap with the first ten workdays of unpaid E-FMLA. After the first ten workdays, the employee would receive paid E-FMLA (if needed).

What if my business has already provided employees paid sick leave related to coronavirus?

Your employees will still be eligible to receive EPSL beginning April 1, regardless of leave already provided.

What if my business has already denied employees sick leave related to coronavirus?

The EPSL and E-FMLA requirements are not retroactive. However, beginning April 1, employers must begin providing EPSL and E-FMLA leave under the Act.

What if I’m trying to comply but make a mistake?

The U.S. Department of Labor (DOL) has indicated that it will not bring any enforcement actions against employers for violations of the Act during the first 30 days so long as the employer has acted reasonably and in good faith, which includes making employees whole as soon as possible for any non-compliance.

 

Tax Credit Guidance from DOL & IRS

What payroll tax credits can my business receive?

Employers are eligible for a dollar-for-dollar tax credit for EPSL and E-FMLA paid to employees. To be clear, the tax credit is only available for payments that are required by EPSL/E-FMLA, so any payments you make that aren’t required by the FFCRA likely won’t be subject to the tax credit.

Eligible employers also are entitled to a tax credit determined based on costs to maintain health insurance coverage for the eligible employee during the leave period.

When will my business receive the tax credit?

The IRS has stated that eligible employers who pay EPSL or E-FMLA benefits will be able to retain an amount of the payroll taxes equal to the amount paid, rather than deposit them with the IRS. Taxes an employer could retain include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.

If there are not sufficient payroll taxes to cover the amount of qualifying leave paid, employers will be able file a request for an accelerated payment from the IRS. They estimate that employers should be able to receive payment within 2 weeks.

The IRS will issue additional guidance on this process.

Open Questions

While the recent guidance has clarified a number of things, we still have a number of critical, unanswered questions:

Do the “Stay At Home” and “Shelter In Place” orders being issued by many states and localities constitute a “quarantine or isolation order” that would qualify employees for EPSL under category #1?

This remains unclear. The statutory language suggests that Category #1 is more focused on individual quarantines than broad ones, and the governmental authorities implementing these orders have in many cases emphasized that they are not quarantine orders. As such, it seems unlikely that the current state and local orders will be deemed to satisfy Category #1. We are hoping to receive additional guidance on this issue from the DOL.

If I have placed employees on furlough or temporary layoff due to our business having to be shut down or greatly diminished, will they be entitled to EPSL or E-FMLA?

Here too, we don’t have a clear answer. Employees on furlough or temporary layoff are likely counted for purposes of reaching the 500-employee threshold, but because their absence is due to lack of work – not one of the 6 categories for EPSL – it’s not clear that they qualify to receive EPSL or E-FMLA themselves. We will continue to monitor this issue and provide additional advice as appropriate.

Families First Coronavirus Response Act Signed Into Law

On Wednesday night, President Trump signed into law the Families First Coronavirus Response Act, H.R. 6201, which provides for expanded FMLA benefits and paid sick leave for many employees affected by the coronavirus, in addition to other emergency measures to respond to the pandemic.

Note that there have been changes made to H.R. 6201 since we previously reported on this legislation.

The Act will require many employers to provide expanded FMLA benefits and paid sick leave to employees who are unable to work for reasons related to the coronavirus pandemic.

The Act provides for refundable payroll tax credits, up to certain limits, to cover the sick leave or FMLA benefits paid to employees pursuant to the Act.

The FMLA and sick leave requirements do not apply to all employers. First, the provisions apply only to employers with 500 or fewer employees. Second, employers of health care providers or emergency responders may elect to exclude their employees from the FMLA and/or sick leave benefits. Finally, following passage of the Act, the Secretary of Labor will have the authority to issue regulations, including regulations that exempt small business with fewer than 50 employees from certain FMLA and sick leave requirements.

The details of these provisions are below.

Public Health Emergency FMLA Benefits

The Act will expand benefits under the Family and Medical Leave Act (FMLA) to include 12 weeks of paid job-protected leave for needs related to a public health emergency. Employees who have been working for at least 30 calendar days will be eligible.

Eligible employees can use expanded FMLA leave if they are unable to work (or telework) due to a need for leave to care for a son or daughter under 18 years of age because a school or place of care has been closed or a child care provider is unavailable due to a public health emergency.

The first 10 days of the leave may be unpaid. Employees may use accrued personal or sick leave during the first 10 days. After the first 10 days, employers must pay the employees at least two-thirds of their regular rate of pay for the number of hours the employee would normally be scheduled to work. However, compensation is capped at $200 per day and $10,000 in the aggregate.

The FMLA leave is be job protected, except that employers with less than 25 employees need not restore the employee to their position if the position no longer exists due to economic conditions caused by the public health emergency and the employer has made reasonable efforts to restore the employee to an equivalent position.

The other requirements for FMLA leave appear not to be applicable to leave for this new purpose. In other words, employees do not need to be at a worksite with 50 or more employees within a 75 mile radius, nor do they need to have worked for 12 months and at least 1250 hours.

Paid Sick Leave

The Act also will require employers to provide 80 hours of paid sick leave to full-time employees (or the number of hours the employee typically works over a two-week period for part-time workers) to be used for the following coronavirus-related reasons:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Paid sick leave is calculated based on the number of hours an employee would normally be scheduled to work. Sick leave is paid at the employee’s regular rate of pay (or two-thirds of the employee’s regular rate of pay for uses (4), (5), or (6)), except that compensation is capped at:

  • $511 per day and $5,110 in the aggregate for uses (1), (2), or (3); and
  • $200 per day and $2,000 in the aggregate for uses (4), (5), or (6).

Sick leave will be available to employees immediately, regardless of how long they have been employed with the employer. Employers may not require an employee to use other paid leave first before using this paid sick leave and may not require employees to find a replacement employee to cover their hours. Unused sick leave does not carry over to the next year, and an employee’s entitlement to this sick leave ends on the next scheduled work shift immediately following the termination of the need for leave.

Employers will also be required to post a notice informing employees of their rights to leave. The Secretary of Labor will provide a model notice. Employees will be protected from retaliation for use of these paid sick leave benefits.

Levenfeld Pearlstein continues to monitor developments regarding COVID-19 and is available to provide advice and guidance—remotely—to employers with questions about managing their workforce during the pandemic.

 

 

New York Announces Emergency–And Ongoing—Paid Sick Leave

After announcing his intention to do so last week, New York Governor Cuomo has reached an agreement with the state legislature regarding paid sick leave. The agreement provides for immediate emergency paid sick leave for workers affected by the coronavirus (COVID-19) pandemic. The legislation also includes comprehensive paid sick leave for New York employees generally, which will become effective 180 days after passage.

Emergency Paid Sick Leave Provisions

These provisions are effective immediately.

The legislation provides for paid sick leave to employees under an order to quarantine, based on the size of the employer:

  • Employers with 10 or fewer employees and a net income less than $1 million are not required to provide paid sick leave, but must provide job protection for the duration of the quarantine order and guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries up to $150,000.
  • Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million must provide at least 5 days of paid sick leave, job protection for the duration of the quarantine order, and guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries up to $150,000.
  • Employers with 100 or more employees, and all public employers (regardless of number of employees), must provide at least 14 days of paid sick leave and guarantee job protection for the duration of the quarantine order.

These benefits must be provided in addition to any accrued sick leave an employee has under the employer’s current policies. In the event that the federal government provides for paid sick leave, employees will only be eligible for benefits above what is provided under federal law.

Employees who are subject to a quarantine order due to travelling to a country for which the CDC has issues a level two or three travel health notice, who travelled there not on company business, after the CDC issued the notice, will not be eligible for these benefits.

The legislation also amends Paid Family Leave and disability benefits requirements to allow for benefits to be paid upon the first full day of unpaid period of mandatory or precautionary order of quarantine, without any waiting period.

Separately, Governor Cuomo issued an executive order last week waiving the seven-day waiting period for Unemployment Insurance benefits for people who are out of work due to COVID-19 closures or quarantines.

 

Paid Sick Leave

These provisions will become effective 180 days after passage.

The legislation also generally requires employers to provide sick leave to their employees, based on the size of the employer:

  • Employers with 4 or fewer employees and a net income less than $1 million must provide at least 5 days of unpaid sick leave each year. Unused sick leave is carried over to the next year, but use may be limited to 40 hours per year.
  • Employers with 5-99 employees and employers with 4 or fewer employees and a net income greater than $1 million must provide at least 5 days of paid sick leave each year. Unused sick leave is carried over to the next year, but use may be limited to 40 hours per year.
  • Employers with 100 or more employees must provide at least 7 days of paid sick leave each year. Unused sick leave is carried over to the next year, but use may be limited to 56 hours per year.

Sick leave may be used for the employee’s or the employee’s family member’s medical care, diagnosis, or treatment as well as absence from work to obtain services or assistance related to domestic violence, sexual offense, stalking, or human trafficking of the employee or the employee’s family member.

Employees who already have paid sick leave or paid time off policies that exceed these requirements are not required to provide additional leave.

Levenfeld Pearlstein continues to monitor developments regarding COVID-19 and is available to provide advice and guidance—remotely—to employers with questions about managing their workforce during the pandemic.

 

For more resources and LP’s response to COVID-19, visit this webpage.

What Employers Can Expect from the Emergency Coronavirus Bill

Early Saturday morning, the House of Representatives passed H.R.6201—the Families First Coronavirus Response Act—which provides for expanded FMLA benefits and paid sick leave to many employees, in addition to other emergency measures to respond to the coronavirus pandemic.

Here’s what employers can expect if the Act passes in its current form. The legislation has not yet passed the Senate and it may undergo significant revisions as part of the reconciliation process.  We will update you on the final legislation that gets passed.  Also, as currently drafted, the provisions below will apply only to employers with 500 or fewer employees.

Public Health Emergency FMLA Benefits

The Act will expand benefits under the Family and Medical Leave Act (FMLA) to include 12 weeks of paid job-protected leave for needs related to a public health emergency. Employees who have been working for at least 30 calendar days will be eligible.

Eligible employees can use expanded FMLA leave to:

  • comply with a recommendation or order by a public official to quarantine who cannot perform the functions of the position while complying with the order; or
  • care for a family member who is subject to recommendation or order by a public official to quarantine; or
  • care for a child under 18 whose school or place of care has been closed, or whose childcare provider is unavailable due to a public health emergency.

The first 14 days of the leave may be unpaid. Employees may use accrued personal or sick leave during the first 14 days, but employers may not require employees to use accrued paid leave.  After the first 14 days, employers must pay the employees at least two-thirds of their regular rate of pay for the number of hours the employee would normally be scheduled to work.

The FMLA leave is be job protected, except that employers with less than 25 employees need not restore the employee to their position, if the position no longer exists due to economic conditions caused by the public health emergency, and the employer has made reasonable efforts to restore the employee to an equivalent position.

Paid Sick Leave

The Act will also require employers to provide 80 hours of paid sick leave to full-time employees (or the number of hours the employee typically works over a two-week period for part-time workers) to be used for the following coronavirus-related purposes:

  • To self-isolate because the employee is diagnosed with coronavirus;
  • To obtain a medical diagnosis or care if such employee is experiencing the symptoms of coronavirus;
  • To comply with a recommendation or order by a public official or a health care provider to quarantine because the employee was exposed to coronavirus or is exhibiting coronavirus symptoms;
  • To care for or assist a family member of the employee who is self-isolating because a family member has been diagnosed with coronavirus or is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care;
  • To care for a family member if a public official or a health care provider order to quarantine because of the exposure of such family member to the coronavirus exhibition of symptoms of coronavirus by such family member; or
  • To care for the child of such employee if the school or place of care has been closed, or the childcare provider of such child is unavailable because of coronavirus.

Sick leave will be available to employees immediately, regardless of how long they have been employed with the employer. This paid sick leave must be provided in addition to any other paid sick leave offered to employees. Employers may not amend their sick leave policies to avoid offering additional leave.

Employers will be required to post a notice informing employees of their rights to leave. The Secretary of Labor will provide a model notice.

The FMLA benefits and sick leave provisions will go into effect within 15 days after the date of enactment and will expire on December 31, 2020

Levenfeld Pearlstein continues to monitor developments regarding COVID-19 and is available to provide advice and guidance—remotely—to employers with questions about managing their workforce during the pandemic.

 

For more resources and LP’s response to COVID-19, visit this webpage.

Managing Human Resources in a Pandemic: Top 5 Things Employers Can Do Now

With this week’s pandemic declaration and increasing cases of COVID-19 here and abroad, employers are facing a variety of challenges. Here are the top 5 things employers can do NOW to respond to the pandemic:

    1. Maintain a Safe Workplace
    2. Manage Employee Time Off
    3. Avoid Medical Inquiries
    4. Consider Expanding or Requiring Work from Home
    5. Keep Employees Informed

See below for a more detailed discussion of each of these items. We will continue to keep you updated on issues relating to how COVID-19 is impacting the workplace.

* * * * * * *

  1. Maintain a safe workplace. Employers have a general duty under the Occupational Safety and Health Act to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. While there are currently no OSHA standards or regulations regarding COVID-19, OSHA has published a comprehensive guidance on preparing workplaces for the virus. The guidance recommends a number of steps that every employer can take to reduce their employees’ risk of exposure to COVID-19, including:
    • Promote frequent and thorough hand washing, including by providing workers, customers, and worksite visitors with a place to wash their hands. If soap and running water are not immediately available, provide alcohol-based hand rubs containing at least 60% alcohol.
    • Actively encourage workers to stay home if they are sick.
    • Encourage respiratory etiquette, including covering coughs and sneezes.
    • Discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment, when possible.
    • Provide customers and the public with tissues and trash receptacles.
    • Inform and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure.
    • Minimize contact among workers, clients, and customers by replacing face-to-face meetings with virtual communications and implementing telework if feasible.
    • Establish alternating days or extra shifts that reduce the total number of employees in a facility at a given time, allowing them to maintain distance from one another while maintaining a full onsite work week.

In addition, many companies are cancelling all business travel that requires air travel, cancelling all conference attendance, and using video conferencing wherever possible instead of face-to-face meetings.

2. Manage Employee Time Off. Employers should be prepared for employees who need time from work related to the pandemic. As OSHA recommends, employers should actively encourage workers to stay home if they are sick. Employers may also require employees to stay home if they have recently returned from a high-risk area, have been exposed to the virus, or if they are visibly sick. Employers may also need time off due to quarantine measures, to care for sick family members, and to be home with children when there are school cancellations.

In anticipation of employees needing leave, employers should review their leave policies including vacation, sick leave, PTO, FMLA, and/or unpaid leaves of absences to determine what types of leave may be available to these employees. For guidance on how FMLA may apply, see the Department of Labor’s Questions and Answers regarding FMLA and COVID-19. Chicago and Cook County employers are reminded that local sick leave ordinances require that employees be permitted to use sick time for absences due to a school or business closure.

Employers may also decide what exceptions to these policies they are prepared to make, including providing additional paid time off to employees who need leave. If employers cannot provide paid time off to employees who are ill, they should consider what other actions they can take to ensure that these sick workers stay home. Any policy exceptions should be applied consistently to avoid any non-discrimination concerns.

Illinois Governor J.B. Pritzker has announced that he will file emergency rules to clarify workers who are unemployed due to COVID-19 will receive unemployment benefits to the full extent permitted by law.

3. Avoid Medical Inquiries. Employers may be tempted to ask employees about their potential exposure to COVID-19—particularly if employees have recently returned from travel abroad—but the Americans with Disabilities Act (ADA) limits what employers can ask. The ADA prohibits both making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances. The types of questions employers may wish to ask to assess Covid-19 risk may run afoul of these prohibitions. For example, asking employees whether they are immune-compromised is a disability-related inquiry because a compromised immune system can be closely associated with conditions such as cancer or HIV/AIDS. To avoid these issues, refrain from asking employees about health conditions.

4. Consider expanding or requiring work from home. The CDC currently recommends social distancing and working remotely to reduce the spread of COVID-19. Governor Pritzker has echoed this guidance and encouraged business that can have employees work remotely to consider doing so immediately. Employers that already have work-from-home policies and procedures can utilize this option to maintain productivity during the outbreak.

Employers should consider requiring all employees or departments that can do so to work from home, and to think carefully about other employees who could be allowed to do so. For employers who do not currently support remote work arrangements, now is the time to consider whether remote work is feasible. Work from home policies should cover (1) employee timekeeping, particularly for non-exempt employees; (2) expectations for employee work product and availability; and (3) what procedures are necessary to maintain the security of the company’s confidential information.

5. Keep employees informed. The above steps require direct communication to employees about the actions the employer is taking as well as the employees’ obligations. Designating an individual or team that employees can contact with questions allows for open and consistent communication. Additionally, maintaining any relevant policy documents is an easily accessible location will avoid confusion and panic among employees.

Levenfeld Pearlstein continues to monitor developments regarding COVID-19 and is available to provide advice and guidance—remotely—to employers with questions about managing their workforce during the pandemic.