Coronavirus

This afternoon, the U.S. Supreme Court blocked the OSHA Emergency Temporary Standard (“ETS”) that would have required all employers with 100+ employees to mandate vaccination or testing, while allowing the Department of Health and Human Services’ vaccine mandate for those touching healthcare facilities to go into effect. In striking down the OSHA requirement, the Court found that OSHA had exceeded its authority by implementing a requirement that was not specific to workplace safety.

Here are the key takeaways for employers:

The OSHA ETS is blocked, so there is no requirement for employers to implement a vaccination/testing requirement (other than in specific industries).
Employers that want to implement a vaccine and/or testing requirement may do so, subject to legal requirements (including both accommodation obligations and state limitations on vaccine/testing mandates).
In states that prohibit or limit vaccine/testing requirements, employers will have to comply with those prohibitions/limitations and won’t be able to rely on the OSHA ETS as a reason to implement.
Employers that touch healthcare facilities need to comply with the Department of Health and Human Services vaccine mandate.
It’s possible that state or local government authorities may take steps to implement mandates – it remains to be seen which do so, and whether they are upheld.

The Latest From Chicago: Anti-Retaliation, Fair Workweek, and Food Delivery Disclosures

May 28, 2020LPLeave a comment

While warm weather has finally hit Chicago, Mayor Lightfoot, the City Council and Chicago Department of Business Affairs and Consumer Protection (BACP) have not taken a spring break. The below summarizes the latest ordinances, and regulations from the Windy City:

Anti-Retaliation Ordinance

The Chicago City Council passed the COVID-19 Anti-Retaliation Ordinance last week, which prohibits employers from retaliating against employees for obeying a public health order requiring an employee to stay home due to coronavirus.

The Ordinance prohibits employers from demoting or terminating a Covered Employee for obeying an order issued by the Mayor, the Governor of Illinois, the Chicago Department of Public Health, or, in the case of (2), (3), and (4) below, a treating healthcare provider, requiring the Covered Employee to:

Stay at home to minimize the transmission of COVID-19;
Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;
Obey a quarantine order issued to the Covered Employee;
Obey an isolation order issued to the Covered Employee; and
Obey an order issued by the Commissioner of Health regarding the duties
of hospitals and other congregate facilities

Employees subject to demotion or termination may recover reinstatement, damages equal to three times the full amount of wages that would have been owed had the retaliatory action not taken place, actual damages, and attorneys’ fees. Violations may also lead to fines of up to $1,000 per offense per day.

The ordinance is effective immediately.

Fair Workweek Ordinance

Chicago’s Fair Workweek Ordinance is set to take effect on July 1, 2020. Ahead of the effective date, the BACP has issued rules for implementing the ordinance, and a supplemental rule for implementation during the pandemic.

The Ordinance requires covered employers to post work schedules at least 10 days in advance, and provide additional pay if work schedules are changed without advanced notice. However, the Ordinance creates an exception where the work schedule change is “because of” a pandemic. BACP’s supplemental rule clarifies that the COVID-19 outbreak qualifies as a “pandemic” for the purposes of this exception, and will remain a “pandemic” until the Mayor’s Executive Order declaring a state of emergency is repealed.  

However, a work schedule change will be considered “because” of the pandemic only when the pandemic causes the employer to materially change its operating hours, operating plan, or the goods or services provided by the employer, resulting in the work schedule change. Further, the exception applies only to the work schedule during which the change occurs, and the work schedule immediately following.

Additionally, while the substantive requirements of the Ordinance will still go into effect on July 1, 2020 and may still be enforced by the City, individual employees will not be allowed to file lawsuits for violations of the ordinance occurring before January 1, 2021.

New Rules for Third Party Food Delivery Companies

Mayor Lightfoot and the BACP announced new rules earlier this month for third-party food delivery companies to increase transparency and fair competition. Effective Friday, May 22nd, all third-party delivery companies must disclose the following to customers, in a “clear and conspicuous manner”:

the menu price of the food;
any sales or other tax applied to the transaction;
any delivery charge or service fee, imposed on or collected from the customer by the third-party food delivery service or by the covered establishment, in addition to the menu price of the food;
any tip that will be paid to the person delivering the food, and not to the third-party food delivery service, to be added into the transaction when it occurs, and
any commission associated with the transaction.

The disclosure requirements apply to all websites, mobile applications or other internet services that offer or arrange the sale of food or beverages by a restaurant, bar or other food-serving establishments. The measure is intended to promote transparency and fair competition, as many restaurants are increasing relying on third-party delivery services to stay afloat during the pandemic.

While the rules were promulgated in response to the pandemic, these new rules will be in place permanently.

Guidance for Restaurants Applying COVID Surcharges

The City of Chicago issued a guidance for restaurants charging COVID-related surcharges to customers, reminding restaurants that the City’s restaurant tax is .50%, and any surcharge customers are required to pay is considered taxable and should be included in the basis upon which the restaurant tax is calculated. Additionally, a COVID surcharge is not a tax and should not be designated as such on any price list or invoice.

New Required Poster and Other Key Takeaways for Employers from Illinois’ New Stay-At-Home Order

May 4, 2020LP1 Comment

On April 30, Governor Pritzker issued an executive order extending Illinois’ Stay-at-Home mandate to May 30. The order, effective May 1, also contains a number of new requirements for employers. The key takeaways are below:

1. All Employers with Employees On-Site Must Post New Safety Poster

Any business with employees physically reporting to the work site must post guidance regarding workplace safety during the COVID-19 emergency. The required posting is available here.

Additional workplace safety posters are available from OSHA and the CDC.

2. Employers Should Facilitate Remote Work “When Possible”

All businesses must evaluate whether employees are able to work from home and are encouraged to facilitate remote work from home when possible.

3. Employers Must Provide Face Coverings to Employees Where Social Distancing Unavailable

Employer must provide employees with appropriate face coverings and require that employees wear face coverings where maintaining a six-foot social distance is not possible. When work circumstances require, employers must provide employees with other protective equipment in addition to face coverings.

4. New Social Distancing Guidelines for Manufacturers

Essential manufacturers that continue to operate are required to follow social distancing requirements and take “appropriate precautions.” These precautions may include:

1. - providing face coverings to all employees who are not able to maintain a minimum six-foot social distance at all times;
  - staggering shifts;
  - reducing line speeds;
  - operating only essential lines, while shutting down non-essential lines;
  - ensuring that all spaces where employees may gather, including locker rooms and lunchrooms, allow for social distancing; and
  - downsizing operations to the extent necessary to allow for social distancing and to provide a safe workplace in response to the COVID-19 emergency.

5. New Social Distancing Guidelines for Retail Stores

Essential retail stores that continue to operate must comply with the following requirements to the greatest extent possible:

1. - provide face coverings to all employees who are not able to maintain a minimum six-foot social distance at all times;
  - cap occupancy at 50 percent of store capacity, or, alternatively, at the occupancy limits based on store square footage set by the Department of Commerce and Economic Opportunity;
  - set up store aisles to be one-way where practicable to maximize spacing between customers and identify the one-way aisles with conspicuous signage and/or floor markings;
  - communicate with customers through in-store signage, and public service announcements and advertisements, about the social distancing requirements set forth in this Order (Social Distancing Requirements); and
  - discontinue use of reusable bags.

Non-essential retail stores may reopen for the limited purposes of fulfilling telephone and online orders through pick-up outside the store and delivery. Employees working in the store must follow social distancing requirements and must wear a face covering when they may come within six feet of another employee or a customer.

COVID-19 Workplace Safety for Essential Businesses: What is New in Illinois? [Updated]

April 21, 2020May 7, 2020LPLeave a comment

Can Employees Who Contract Coronavirus Receive Workers’ Compensation Benefits?

Update: The emergency rules have been rescinded following a court order temporarily blocking enforcement of the rule. Governor Pritzker and the Commission have indicated they will renew their efforts to make workers’ compensation available to employees who contract COVID-19.

Likely yes. In new emergency rules effective April 13, the Illinois Workers’ Compensation Commission announced that an employee of an essential businesses who contracts coronavirus will be rebuttably presumed to have been exposed in the workplace. Specifically, the exposure will be rebuttably presumed to have arisen out of and in the course of employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of employment. To defeat this presumption, the employer would likely have to put forth evidence showing the employee was exposed elsewhere or could not have been exposed in their workplace.

The presumption applies to First Responders, Front-Line Workers, and other employees identified as crucial personnel under Pritzker’s Executive Order.

Mask Requirements: What Could Happen in Illinois?

Update: Governor Pritzker’s executive order extending Illinois’ Stay-at-Home mandate to May 30 includes a requirement that employers provide face coverings to employees where social distancing unavailable. See all key takeaways here.

As of April 15, essential businesses in New York must provide employees who are present on the worksite with face coverings to be used when in direct contact with customers or members of the public. In Illinois, local governments in Skokie, Glenview, Cicero, and Morton Grove have issued orders requiring residents and visitors to wear a mask when in essential businesses like grocery stores, pharmacies and gas stations. In Cicero, like in New York, the order requires employers to provide masks to employees.

Governor JB Pritzker has said he is considering issuing a similar order. If he does, employers required to provide face masks to employees may be subject to OSHA requirements for providing Personal Protective Equipment (PPE). Employers are generally required to provide PPE to employees for at the employer’s cost and cannot require employees to provide their own PPE. Employers should thus be prepared to provide or pay for face masks for employees. Additionally, employers will likely need to provide employees information on the safe usage of required face masks. CDC guidelines on face masks is available here.

Assessing Workforce Options: Amid Financial Pressures, What’s The Right Plan Of Action For My Business?

April 1, 2020April 1, 2020LPLeave a comment

Many businesses have faced significant economic challenges due to the coronavirus pandemic. If your business is considering making personnel decisions to improve financial stability, you have a number of options and considerations.

Generally, employers have four options for reducing their workforce costs:

Reducing employees’ hours
Reducing employee compensation
Furloughs/temporary layoffs
Termination/permanent layoffs

You do not have to select one alternative – these options can be used in combination to address the unique needs of your business. For example, a portion of the workforce could be furloughed and a different portion could be laid off. Or, some employees may have their pay reduced and may later be laid off if conditions do not improve.

The attached chart summarizes key considerations when determining the right plan for your business. Keep in mind that if your business has applied for or received a loan from the Small Business Administration’s Paycheck Protection Program (put in place as part of the CARES Act) a reduction in the number of employees, in work hours, or in payroll during the eight weeks after receiving the loan may impact the loan forgiveness. Employers, in some cases, have the opportunity to rehire employees or make up for wage reductions by June 30, 2020 and still receive loan forgiveness. Consult our specific guidance on the CARES Act or speak to your accountant or bank concerning the loan terms.

Click here to download a full PDF of the guide.

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

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

March 30, 2020March 30, 2020LPLeave a comment

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

March 27, 2020March 27, 2020LPLeave a comment

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.

New York Announces Emergency–And Ongoing—Paid Sick Leave

March 19, 2020March 19, 2020LPLeave a comment

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.