by Michelle R. Ferber, Jennifer R. Lucas and Julie Ann Giammona
The COVID-19 pandemic has resulted in significant unpredictability and rapidly-shifting recommendations and guidelines. Employers are facing unique and difficult challenges. We are here to help you navigate these complex issues. The following information is based upon the most recently available information (3/16/2020) but situations are rapidly evolving. We will make every effort to update our alerts to ensure you have the most current information.
In this alert, we first provide practical guidance for employers regarding key issues to consider and suggested actions to take. Next, we will summarize the recent emergency legislation related to sick leave.
PRACTICAL CONSIDERATIONS
- Develop and Communicate Guidelines and Policies. Consider practical issues and solutions and be sure to keep your employees in the loop about your policies. Specifically:
- Instruct employees not to come to work if they are sick (employers may require symptomatic employees to go home or stay home to recover).
- In light of the pandemic designation, employers may require employees and visitors to undergo screening:
- Temperature checks (ideally via laser tool) are permitted.
- Employees may be required to respond to health surveys.
- Employees may be required to respond to inquiries regarding recent travel.
- Maintain employee privacy (HIPAA). Employee health information must be kept confidential. This includes:
- Not disclosing the identity of any employee with COVID-19.
- Employers have no duty to report illnesses or positive diagnoses to any authorities.
- Remind employees of the general hygiene recommendations.
- Remote Work:
- If your business allows, encourage employees to work remotely.
- It may be necessary to accommodate ill or at-risk employees by permitting remote work.
- Due to school closures, parents may need remote work options.
- Employers must provide the same accommodations for disabled workers working remotely as are provided in the office.
- Ensure that remote access is secure and protected from hackers.
- Closely monitor employee travel:
- Employers may require employees who have travelled to highly affected areas, or otherwise been exposed to COVID-19, to remain home.
- Be mindful that employers may not discriminate, harass or retaliate against employees on the basis of various protected categories, including race/national origin, disability and health issues.
- Remind employees of available paid sick time.
- Permit employees to use paid time off.
- Remind all employees that discrimination, harassment and retaliation will not be tolerated, and ask them to report any such actions immediately.
- Other Practical Considerations.
- Cross-train employees on critical functions in case someone is out of the office.
- What vendors or suppliers might be impacted? What alternative supplies could you use?
- Can you avoid meetings, gatherings or employee travel? Could events be attended via phone or video conference?
- Prepare contingency plans for serving customers in case service channels are disrupted.
- Determine if temporary staffing agencies can assist with employee absences.
- Review contracts for potential liability in the event a business is unable to meet specified requirements.
- Payment. Ensure your employees are properly tracking their time and being paid for work performed.
- Ensure that hourly employees are tracking hours worked remotely (including meals, rest breaks and overtime).
- If necessary, provide any remote employee with timesheets or a manner of clocking in/out.
- If employees are required to use personal devices and utilities for remote work (cell phones, internet), reimburse them for those costs.
- Insurance. Review your business’s insurance coverage.
- If your business is shut down or experiences a loss, you may be covered;
- If a customer or employee claims negligence led to exposure/infection, you may be covered.
EMPLOYEE LEAVE – AVAILABILITY AND LEGISLATIVE CHANGES
On March 16, 2020, President Trump is expected to sign emergency legislation (“Families First Coronavirus Response Act”) modifying federal law intending to ease the burden on employees related to the pandemic. These include (1) an emergency expansion of the Family Medical Leave Act (FMLA), (2) a new federal paid sick leave law, and (3) expanded unemployment insurance benefits. These laws will likely undergo changes in the weeks to come. The following summary is based on the most recently available information (3/16/2020).
Expanded FMLA Coverage
- Effective within 15 days after enactment until 12/31/2020.
- The FMLA previously applied to employers with more than 50 employees per workplace. The emergency provisions temporarily expand FMLA coverage to employers with fewer than 500 employees.
- Previously, in order to qualify for FMLA protections, an employee must have worked more than 1250 hours in the past 12 months and worked for your business for more than 12 months. The emergency provisions temporarily expand the qualifications provisions such that an employee will qualify for FMLA protection if he or she has been employed by you for the past 30 days.
- FMLA permits qualifying employees to take up to 12 weeks of paid, protected leave to deal with a medical condition or care for an ill family member. Reasons for leave specifically include the following:
- To comply with a requirement or recommendation to quarantine due to exposure to, or symptoms of, coronavirus;
- To care for an at-risk family member (with expanded definitions of who qualifies as a “parent”) who is adhering to requirement or recommendation to quarantine due to exposure to, or symptoms of, coronavirus; or
- To care for the employee’s child if the child’s school or place of care (including if the childcare provider is unavailable) has been closed due to a public emergency.
- The first 14 days of leave may be unpaid, but an employee may elect to use accrued sick time or vacation to cover that time.
- After this 14-day period, the employer must pay full time employees 2/3 their regular salary (or rate for regularly scheduled hours). Part-time employees must be paid 2/3 the average of their last 6 months pay, or average of what they would normally be scheduled to work.
- The Secretary of Labor has the authority to grant exceptions to small businesses of less than 50 employees where the imposition of these requirements would jeopardize the business’s viability.
Emergency Paid Sick Leave Act – Applies to employers with fewer than 500 employees.
- Employers must provide employees with 80 hours of paid sick leave at the employee’s regular rate (in addition to sick pay already provided).
- This leave may be used:
- To comply with a requirement or recommendation to quarantine due to exposure to, or symptoms of, coronavirus;
- For self-isolation because the employee is diagnosed with coronavirus;
- To obtain a diagnosis or care because the employee is exhibiting symptoms;
- To care for or assist an at-risk family member who is self-isolating due to a diagnosis, who is exhibiting symptoms of coronavirus and needs to obtain medical care, or who is adhering to requirement or recommendation to quarantine due to exposure to, or symptoms of, coronavirus; or
- To take care of the employee’s child if the child’s school or place of care has been closed due to the COVID-19 coronavirus (including if the childcare provider is unavailable).
- This sick leave will not carry over into the next year.
- At the employee’s request, this sick pay may be used to cover the 14-day waiting period for FMLA leave.
Federal Tax Credits
- The federal legislation includes tax credits to employers who make payments in compliance with the emergency FMLA and Paid Sick Leave Act described above.
- FMLA: Payroll tax credit for 100% of wages paid up to $200 per employee per day, capped at $10,000 total per employee.
- Emergency Paid Sick Leave Act: Payroll tax credit for 100% of wages paid up to $200 per employee per day for employees caring for family members, and $511 per employee per day for employees out for their own prevention/care. Credits cap at 10 days per employee.
- Credits will be taxable income for the employer.
California State Disability
- Employees with COVID-19 may apply for disability benefits.
- Employees caring for a family member with COVID-19 can apply for Paid Family Leave benefits.
- Effective 3/12/2020, California Governor Gavin Newsom issued an executive order waiving the one-week waiting period to collect unemployment and disability benefits under California law. (more information available at https://tinyurl.com/upq2qe3)
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.