As the global response to the outbreak of the COVID-19 virus seems to be changing at an extremely rapid pace, we know employers are racing to provide safe workplaces, keep employees well informed, demonstrate their employees are valued and cared for, and ensure compliance with applicable laws and orders. The following information is provided to help employers navigate this unchartered territory.
- Resources for Ensuring Safe Continued Operations:
Determining whether your business should remain open as normal, remain open but with modifications to allow for remote work to the extent possible, or close will depend widely on industry type, whether the government determines your organization provides “essential services”, and whether your computer and information technology systems can effectively facilitate remote work. OSHA’s general duty clause requires all employers to provide employees with a reasonably safe workplace that is free from known hazards and health threats. Resources to help you identify and reduce threats from COVID-19 in your work environment are available from:
Florida Department of Health: https://floridahealthcovid19.gov/businesses/
- Managing Absences:
Employee absences related to COVID-19 are arising under varying circumstances, each of which may require an individualized assessment for an appropriate response.
As a general matter, any employee who has been diagnosed with COVID-19, exhibits symptoms of COVID-19, or who has come into close contact with someone testing positive for COVID-19 should stay home from work for a minimum of fourteen days and not return to work until completely symptom-free.
Employers may require individuals to adhere to these guidelines without fear of running afoul of the ADA or health information or other confidentiality rules. Employers may also take each worker’s temperature before allowing them to come into the workplace, screen new hires for symptoms or a temperature following a conditional job offer, and delay employee start dates when the employee exhibits symptoms. See recent EEOC guidance: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm.
However, employers should avoid directly asking employees if they have COVID-19.
Further, while the EEOC has stated that requiring a doctor’s note of fitness to return to duty from an employee who wishes to return to work is permissible, the CDC recommends that employers not impose such a requirement because many people will recover from COVID-19 without any medical intervention and doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. See CDC Interim Guidance for Businesses and Employers – Recommended Strategies for Employers to Use Now.
Employees may also need to stay home from work to care for someone who falls within one of the above categories requiring them to remain at home for 14 days, or to care for children whose school or daycare is closed due to COVID-19.
Employers should ask their workers who are “calling off work” for the reason behind their call-off to determine if the absence falls into one of the foregoing categories, because these are the circumstances that may qualify employees for new paid leave options made available by the Families First Corona Virus Relief Act (the “FFCVA”) signed into law by President Trump on March 18, 2020. More about the FFCVA is below.
Some employees are choosing to call off or refusing to work due to fear of exposure to the virus. If remote work arrangements are impossible or impracticable for an employee in these circumstances, an employer is permitted to require the employee to report for duty or face disciplinary action. However, a more empathetic approach may be to offer such an individual a temporary unpaid leave until he or she feels safe to return to work.
- Layoffs and Furloughs Due to Business Slowdown:
Many employers are considering the imminent need to furlough or layoff employees due to lack of work as a result of closures in compliance with government orders or a general slowdown of business. Employees who are furloughed or laid off due to COVID-19 will be eligible for emergency reemployment benefits without the normal “waiting week” and actively seeking work requirements. More information about the emergency reemployment assistance is available here: http://floridajobs.org/docs/default-source/ra-dua-documentation/dua-faqs-3-17-20-updates.pdf?sfvrsn=805543b0_4
Employers should individually assess their employee benefit programs to determine if employees can remain covered under group health insurance and other group benefits while on furlough or layoff. This determination will be driven by the terms of the plan document or carrier contract.
Generally, other employee benefits such as paid time off are not applicable to employees on furlough or layoff. Those benefits would remain intact and available for employees to use upon recall or reinstatement, or paid out per the terms of the employer’s written policies upon final termination.
Employers must remain aware of their obligations under the Worker Adjustment and Retraining Rights Act (WARN Act) to provide notice of mass layoffs to the extent that a COVID-19 related furlough or layoff impacts 50 or more individuals within a 30-day period.
- Families First Corona Virus Relief Act (the “FFCVA”):
This bill was signed into law by President Trump on Wednesday, March 18, 2020. It contains a variety of provisions, but the two most pertinent to employers are the requirements to provide Emergency Paid Sick Leave and Emergency Paid FMLA leave, as detailed below. The bill goes into effect on April 2, and it is expected that the Department of Labor (DOL) will issue implementation guidance before that date. In the meantime, much remains unknown about the practicalities for employers in providing these new benefits.
- Emergency Paid Sick Leave:
Emergency Paid Sick Leave applies to employers with less than 500 employees. The bill permits the Secretary of Labor to exempt employers with less than 50 employees if providing the emergency paid sick leave creates an unreasonable financial burden. It is unclear whether employers with less than 50 employees will need to individually apply for the exemption or if the Secretary of Labor has the authority to issue a blanket, nationwide exemption.
Emergency Paid Sick Leave requires employers to pay 80 hours of paid sick leave to employees who: (1) are under a government ordered quarantine, (2) are under a physician-recommended self-quarantine due to presumed exposure, (3) have symptoms, (4) are caring for a family member that is any of (1) – (3), (5) are caring for a child whose school has closed, or (6) 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.
The emergency paid leave sick leave benefit is 100% of regular weekly pay up to $511/day and $5,110 in total per person for reasons (1)-(3) and (6) above. The emergency paid sick leave benefit for reasons (4) and (5) (the “caregiver reasons”) is two-thirds of regular weekly pay up to $200/day and $2,000 total per person.
An employer’s failure to provide the paid leave benefit will be treated as a minimum wage violation under the FLSA. Employees are protected from being terminated or retaliated against for exercising their right to Emergency Paid Sick Leave.
- Emergency Paid FMLA:
The FFCVA substantially amends the FMLA to add a new qualifying reason for up to 12 weeks of job-protected FMLA leave: to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency.
The Emergency Paid FMLA amendment also applies only to employers with less than 500 employees and provides for an exemption of employers with less than 50 employees if the paid FMLA requirement is deemed to be an unreasonable financial burden. Additionally, the Emergency Paid FMLA Amendment gives the Secretary of Labor authority to exclude certain healthcare providers and emergency responders from the definition of employees who are eligible for this type of leave. As with Emergency Paid Sick Leave, it is unclear whether these exemptions the Secretary is authorized to make must be individually sought by employers or will be granted on a nationwide basis.
The Emergency Paid FMLA amendment also contains a provision allowing employers of healthcare providers and emergency responders to elect to exclude such employees from entitlement to the use of Emergency Paid FMLA.
The Emergency Paid FMLA amendment makes paid FMLA leave available after 10 days. The first 10 day days of leave may be paid via the employer’s normal paid leave benefits policy, or be unpaid if no other paid leave benefit is available.
An employee must be employed with the employer for 30 days to be eligible for Emergency Paid FMLA. There is no requirement that the employee worked for the employer 1850 hours in the preceding year, as there is for other types of FMLA leave. Because of this, and the fact that employers with between 1 and 50 employees may be required to provide this type of FMLA leave, employees who were previously not eligible for FMLA may now be eligible for this Emergency Paid FMLA.
Emergency Paid FMLA must be paid at the rate of two-thirds of regular weekly pay up to $200/day and $10,000 in total per person.
Employers with fewer than 25 employees have no duty to restore an employee on Emergency Paid FMLA to their same position upon conclusion of the leave if: (a) the position held by the employee no longer exists due to economic conditions driven by the public health crisis, and (b) the employer makes reasonable efforts to restore the employee to another or substantially equivalent position within one year after the public health crisis ends.
It is unclear what types of documentation an employer will be able to require of employees to certify their need for Emergency Paid FMLA.
An employer’s failure to provide the Emergency Paid FMLA will likely be treated as any other claim for FMLA interference would be treated under existing law and judicial precedent. The existing FMLA protection of employees for being wrongfully terminated or otherwise retaliated against for exercising their rights under the FMLA will also be applicable.
- For Both Emergency Paid Sick Leave and Emergency Paid FMLA Leave:
These paid leave benefits will apply only to employees who are unable to work or telework for one of the qualifying reasons. Employees who are working remotely while recovering from symptoms, self-isolating, or caring for a family member will not be entitled to either type of emergency paid leave.
These emergency paid leave benefits may be in addition to – but likely not a replacement or substitution for – other paid leave benefits otherwise offered by employers to which an employee may be entitled.
Employers will receive a payroll tax credit for paid emergency sick leave and emergency paid FMLA benefits. If the total amount of Emergency Paid Sick Leave and Emergency Paid FMLA leave paid exceeds the employer’s total payroll tax bill, the employer will get a tax refund.
These paid leave requirements sunset December 31, 2020.
- Government Assistance Loans:
Both state and federal loans are available for small businesses to meet short term financial needs arising from the COVID-19 situation.
On March 16th, Governor DeSantis activated the Emergency Bridge Loan Program, which provides interest free loans of potentially up to $100,000 to small businesses impacted by COVID-19. https://floridadisasterloan.org/.
The US Small Business Administration (“SBA”) also has disaster-related small business loans available for up to $2M at a 3.75% interest rate. These loans may be used to pay fixed debts, payroll, accounts payable and other bills that can’t be paid because of the disaster’s impact. https://www.sba.gov/offices/disaster/dfoce/resources/1658345
- Other Helpful Resources:
For Florida statistics and helpful links to toolkits, HR Resources, best practice data, economic relief resources, and small business resources: https://www.flchamber.com/follow-facts-not-fear/
As always, our team of professionals at Peterson & Myers is available to help you navigate the changes to the business environment resulting from COVID-19. Please contact us at 863-683-6511 if you have specific questions.