COVID-19 FAQs

 In


In the face of the COVID-19 emergency, employers are struggling with many questions about the impact in the workplace. This document provides answers to many Frequently Asked Questions. As this is a fast-moving and volatile situation, we will be constantly updating this document. New information as of March 29, 2020 will be shown in red.

The materials presented in this resource are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of this resource does not create an attorney-client relationship between the participant and Shawe Rosenthal LLP.

TABLE OF CONTENTS

BACKGROUND ON CORONAVIRUS

Q: What Is Coronavirus and How Does It Spread?

A: The current outbreak is 2019 Novel Coronavirus (COVID-19), which is a new respiratory disease in the coronavirus family, with the source currently unknown, although bats are suspected.  Past coronavirus outbreaks include SARS, which came from civet cats, and MERS, which originated from camels.

COVID-19 can spread person-to-person (contact within 6 feet) through respiratory droplets from coughing and sneezing.  The disease can also possibly be transmitted through hard surface contamination, although it is unclear how long the virus will survive on a hard surface.  Studies suggest that coronaviruses may persist on surfaces for a few hours or up to several days.

Q: What Are The Symptoms Of Coronavirus?

A: The symptoms appear in the form of a fever, dry cough, and shortness of breath.  Symptoms appear 2-14 days after exposure.

Q: What Are Complications Of The Coronavirus?

A: Pneumonia, kidney failure, and death.

THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT

Q: What Is The Families First Coronavirus Response Act (CRA)?

A: Congress has passed the Families First Coronavirus Response Act (CRA), specifically addressing the COVID-19 emergency.  Among other things, there are four employment-related provisions: (1) a new paid sick leave mandate for COVID-19 related reasons; (2) an expansion of the Family and Medical Leave Act to include closures of schools and child care facilities COVID-19 reasons, including additional paid leave; (3) an expansion of unemployment benefits to cover COVID-19 related reasons; and (4) a payroll tax credit to fund the two paid leave mandates.

Q: What Is The Emergency Paid Sick Leave Act Under The CRA? (Updated 3/29/20)

A: The Emergency Paid Sick Leave Act applies to employers with less than 500 employees, but contains exemptions for employers of healthcare employees and emergency responders, as well as certain employers with fewer than 50 employees due to economic difficulties that have yet to be defined.  It provides ten days of paid leave (80 hours for full-time (40 hours per week) employees, and a pro rated amount for part-time (less than 40 hours a week) employees) at the greater of the employee’s regular rate or minimum wage, to a maximum of $511 per day and a total of $5,110, if the employee is unable to work or telework for the following reasons:

  • The employee is subject to federal, state, or local quarantine or isolation order
  • A health care provider (meaning a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the Family and Medical Leave Act) has advised the employee to self-quarantine
  • The employee has symptoms of COVID-19 and is seeking diagnosis

Paid sick leave may be paid at 2/3 the employee’s regular rate, to a maximum of $200 per day and a total of $2,000, for an employee who is unable to work or telework for any of the following reasons:

  • The employee is caring for an individual under quarantine
  • A child’s school or place of care is closed or the child care provider is unavailable due to COVID-19
  • Some other substantially similar condition specified by the Secretary of HHS in consultation with the Secretaries of Labor and Treasury

Employees are not permitted to carry over emergency paid sick leave, and it is not paid out upon termination.  The Emergency Paid Sick Leave Act sunsets on December 31, 2020.

Emergency Paid Sick Leave is available for immediate use.  The employer cannot require an employee to find a replacement in order to use the leave.  Employees should attempt to give notice of intent to use as soon as practicable.  After the first day of use, however, the employee may be required to follow notice procedures.

Q: What Is The Emergency Family And Medical Leave Expansion Act Under The CRA? (Updated 3/29/20)

A: The CRA includes the Emergency Family and Medical Leave Expansion Act.  This applies to employers with fewer than 500 employees. Certain health care providers and emergency responders are excluded from this Act.  Additionally, there is an exclusion for employers with less than 50 employees if the requirements “would jeopardize the viability of the business as a going concern.”

The FMLA expansion permits employees to take FMLA leave if they are unable to work or telework because they have a bona fide need to care for a son or daughter (as defined under the FMLA) due to the closure of the child’s school or child care facility, or the unavailability of a child care provider, due to COVID-19. After the first 10 days of unpaid FMLA leave (which may be covered by the CRA’s Paid Sick Leave mandate or other paid leave, at the employee’s choice), the remainder of this type of FMLA leave is paid at 2/3 of the employee’s regular rate, up to a maximum of $200 per day, and $10,000 in total.

An employee is eligible for FMLA under this provision if they have been employed for at least 30 days.  The normal eligibility and coverage requirements under the FMLA do not apply to this specific expansion to cover school/child care closures. This expansion of FMLA sunsets on December 31, 2020.

This is not a new bank of FMLA leave; the FMLA expansion simply allows employees eligible for regular FMLA to use their 12 weeks of FMLA leave for the new reason. If an employee needs to use FMLA leave for a regular FMLA reason, it will reduce the amount of FMLA leave available for this expansion.  And conversely, if the employee uses FMLA leave for the COVID-19-related school/child care closure, it will reduce the amount of FMLA leave available for any other FMLA reason.

Note that the expanded FMLA right for school/child care closures to employees not eligible for regular FMLA – those who have worked for an employer for 30 days (and would not meet the normal FMLA eligibility requirements of 12 months of employment and 1250 hours of service during the prior 12 months) and employees of employers with fewer than 50 employees (who are not covered by regular FMLA). Until December 31, 2020, these employees have a full 12 weeks of FMLA leave to use to care for a child due to the closure of the school or child care.

Q: What Are The Payroll Tax Credits Under The CRA? (Updated 3/25/20)

A: The Act provides a payroll tax credit equal to 100% of the required Paid Sick Leave, up to $511 per day and a total of $5,110 for leave taken because of the employee’s own personal needs and up to $200 per day and a total of $2,000 for leave taken to care for a family member or because of a school closure or loss of child care, subject to other limitations and conditions.  In addition, the Act provides a payroll credit equal to 100% of the required paid FMLA, up to $200 per day or an annual aggregate of $10,000. Again, there are other limitations and conditions.

According to a statement released by the Internal Revenue Service, Department of Labor, in order to expedite access to the reimbursement funds, employers will be allowed to retain funds that would otherwise have been paid to the IRS in quarterly payroll taxes. If the credit exceeds the taxes paid, the employer will be able to submit an expedited claim for a refund.

Of interest to employers concerned about the up-front costs of providing the mandated paid leaves, the DOL stated as follows in its “Temporary Non-Enforcement Period” Field Bulletin:

For purposes of this non-enforcement policy, employers who are eligible for tax credits but who have insufficient cash flow should make payment of sick leave or family leave wages as soon as possible, but not later than seven 7 calendar days after the employer has withdrawn an amount equal to the required paid sick leave and expanded family and medical leave wages from the employer’s Federal payroll tax deposits or, to the extent such deposits are not sufficient, has received a refund of the credit amount from the IRS to cover the required wages.

It appears, however, that this process may only be available during the DOL’s 30-day grace period, from March 18 through April 17, for non-enforcement against employers making reasonable, good faith efforts to comply with the Act.

Employers should consult with their accountant or tax counsel for further guidance on the proposed tax credit.

Q: What Is The Impact On Unemployment Insurance Benefits Under The CRA? (Updated 3/23/20)

A: The Act provides emergency administration grants to states to assist with processing and paying unemployment insurance benefits, if the state “demonstrate[] steps it has taken or will take to ease eligibility requirements and access to unemployment compensation for claimants, including waiving work search requirements and the waiting week, and non-charging employers directly impacted by COVID-19 due to an illness in the workplace or direction from a public health official to isolate or quarantine workers.” By doing so, states would allow employees to obtain UI benefits if they are ill or ordered into quarantine due to exposure to COVID-19 – a matter that is currently left to each state’s interpretive discretion.  It is important to note that Unemployment Insurance already covers layoffs and closures.

Many states have already enacted COVID-19-related emergency legislation that allows employees to receive UI benefits if they are quarantined, are caring for a family member who has been quarantined, because of a child’s school closure, and other reasons. It is important to check the applicable state law.

Q: What Is The Effective Date Of The CRA? (Added 3/25/20)

A: The Act will take effect on April 1, 2020.

The paid leave mandates are not retroactive. Therefore, any paid leave that employers have chosen to provide for the COVID-19-related reasons set forth in the CRA, above and beyond existing policies or state law mandates, prior to its effective date will not count towards the CRA’s paid leave obligations.

Q: Which Employees Are Counted Towards The 50/500 Employees? (Updated 3/25/20)

A:  “Employee” includes full-time, part-time, seasonal and temporary employees. The 500 employees is counted across an entire company or organization, not by location. In addition, the employees are counted if they are on the employer’s roster; it does not matter if the employee is currently on leave or in a non-work status.  The DOL also states that day laborers supplied by a temporary agency if there is a continuing employment relationship must be counted.

Similarly, if an employer may be subject to the under-50 employee exemption to the paid leave mandates, the employees are counted in the same way.

If a company uses a staffing company to provide supplemental labor, whether those staffing company employees would be counted towards the host company’s 50/500 employee count would depend on whether the two companies should be considered joint employers. Similarly, a joint employer issue may arise in a franchise-franchisor relationship. With regard to the Paid Sick Leave, the Department of Labor has recently issued regulations on the joint employer analysis under the Fair Labor Standards Act, which we summarized in our January 13, 2020 E-Lert. As for the FMLA expansion, existing Family and Medical Leave Act regulations set forth the applicable joint employer standard.

Q: What Are The Notice Requirements for Employers? (Updated 3/27/20)

A: The Secretary of Labor has prepared a notice that must be posted in conspicuous places where the employer normally posts other such employment notices, such as break rooms and cafeterias that are regularly accessed by all employees. In an FAQ document on the notice, the DOL states that in light of the focus on teleworking, employers may satisfy the posting requirements by emailing or direct mailing the notice to employees, or by electronically posting the notice on an internal or external website accessible to employees. The notice need not be posted in other languages, although the DOL is working to make that available. It is not acceptable to place the poster in a binder.

The notice is available at: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Q: Are Employees Of Affiliated Companies Combined Towards The 500 Employees? (Added 3/23/20)

A: Whether the employees of affiliated companies, like sister companies or parent-subsidiary companies, would be aggregated towards the 50/500 employee count would depend on whether the affiliated companies are so closely intertwined so as to constitute a “single employer” under the Fair Labor Standards Act or the Family and Medical Leave Act. Note that if the entities are considered a single employer, they may take on the liabilities of each other with regard to other employment law violations as well.

Q: How Do The Paid Leave Mandates Interact With Existing Leave Policies ? (Updated 3/27/20)

A: It was the intention of Congress that the paid leave mandates under the CRA would be in addition to any existing leave, whether under state or local law or by employer policy. Employers cannot use existing leave to cover the CRA’s new paid leave mandates.  The DOL also states that any paid leave provided prior to the CRA’s effective date does not count towards the Paid Sick Leave mandate.

In addition, if there is other paid leave that may be used for the COVID-19-related reasons specified by the CRA, the employee may choose whether to use the CRA leaves or the other leaves first. The employer cannot require the employee to use other available leave in any particular sequence. If the employee uses all available CRA leave, however, the employer may then require the employee to use the additional leave, if permitted by applicable law or policy.

The DOL clarifies that employees may not use CRA Paid Sick Leave or expanded FMLA leave concurrently with preexisting paid leave, unless the employer agrees (which would be unlikely, as the employee would likely be receiving well more than their normal pay). The employee must choose which leave to take.

The employer may allow – but not require – the employee to use the preexisting paid leave benefit to bridge any difference between CRA Paid Sick Leave or expanded FMLA leave and full pay (e.g. when the employee is receiving 2/3 pay to care for an ill or quarantined family member or due to the need to care for a child because of a school/child care closure). Note, however, that the employer will only be entitled to the payroll tax credit for the statutory CRA portion of the leave.

The DOL notes that an employer can choose to pay more than they are entitled to under CRA – i.e. full pay rather than 2/3 pay to care for an ill family member or a child whose school or child care has closed. However, the employer will only be entitled to the tax credit at the statutory 2/3 amount.

In our opinion, short-term disability benefits will not apply to employees while they are eligible for CRA paid leave, even if they are eligible for STD.

Q. How Will The Small Business Exemption Work? (Updated 3/29/20)

A: The CRA provides an exemption from both the Paid Sick Leave and expanded FMLA mandates for employers with fewer than 50 employees if providing the mandated benefits “would jeopardize the viability of the business as a going concern.”  The DOL explains that a small business may claim this exemption if an authorized officer of the business has determined that:

  1. The provision of Paid Sick Leave or expanded FMLA leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  
  2. The absence of the employee or employees requesting Paid Sick Leave or expanded FMLA leave would entail a substantial risk to the financial health or operational capabilities of the small 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 or employees requesting Paid Sick Leave or expanded FMLA leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Q: Which Health Care Providers Are Exempted From The Leave Mandates? (Added 3/29/20)

A: The CRA exempts certain “healthcare providers” from the Paid Sick Leave and expanded FMLA leave mandates. The DOL has now provided clarification as to who are such healthcare providers, and it is an extremely broad definition encompassing anyone who is involved in the healthcare industry, even including contractor support personnel for services like food service and maintenance, as well as suppliers and manufacturers of medical products.

Specifically, according to the DOL, a health care provider is 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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. 

The DOL further states that this definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any 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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Despite this incredibly broad definition, the DOL states that, to minimize the spread of the virus associated with COVID-19, it encourages employers to be judicious when using this definition to exempt healthcare providers from the provisions of the CRA.

Q: Which Emergency Responders Are Exempted From The Leave Mandates? (Added 3/29/20)

A: The CRA exempts certain “emergency responders” from the Paid Sick Leave and expanded FMLA leave mandates. The DOL has now defined “emergency responder” as is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19.

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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

The DOL states that, to minimize the spread of the virus associated with COVID-19, it encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the CRA.

Q: What Kind Of Verification Of The Need For CRA Leave Can Employers Require? (Updated 3/29/20)

A: In the current Questions and Answers resource, the DOL vaguely asserts that employers should retain “appropriate documentation” and instructs employers to consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. Notably, the DOL states that employers are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

However, in an earlier version of its Questions and Answers resource, the DOL listed the documentation that employers must keep when its employees take Paid Sick Leave or expanded FMLA leave:

  • Employee’s name
  • Qualifying reason for requesting leave
  • A statement that the employee is unable to work or telework because of that reason
  • Dates for which leave is requested
  • Documentation of the reason for leave. This may include:
    • A copy of the Federal, state or local quarantine or isolation order
    • Written documentation from a health care provider advising the employee to self-quarantine due to COVID-19-related concerns
    • A notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider

The DOL noted that these records would be necessary in order to claim the available tax credit for the leave under the CRA.  The change in guidance is somewhat confusing, although we would expect the IRS to require similar documentation for the tax credit, which would include the types of verification documentation listed above.

Any documentation must be retained for three year.

Note that if the employee requires leave beyond the two-week Paid Sick Leave because of their own COVID-19 illness or to care for a family member with COVID-19, and the additional leave qualifies as “regular” FMLA leave (assuming that the illness meets the criteria for a serious health condition under the FMLA), the employee must provide the usual FMLA certifications from a health care provider. This only applies to employers with 50 or more employees and to employees who meet the eligibility requirements for FMLA leave.

We note that for COVID-19 FMLA leave due to the closure of a school or child care facility because the employee must also show that they have a “bona fide” need to care for the child, it may be reasonable for the employer to request relevant information regarding that care, possibly including the age of the child, whether the child has any special needs, and whether other adult household members might be available to provide the care. Employers should be careful, however, in seeking such additional information as aggressive insistence could constitute interference with the employee’s right to take such leave, in violation of the FMLA.

Q: What Are The Job Reinstatement Requirements After Taking CRA Leave? (Added 3/29/20)

A: Employees are generally entitled to be restored to the same or an equivalent position upon returning from either Paid Sick Leave or expanded FMLA leave, as employers are prohibited from disciplining or discriminating against employees for exercising their rights under the CRA.

Just as under regular FMLA, however, there are certain circumstances under which reinstatement is not required. Thus, employees are not protected from employment actions that would have been taken regardless of whether they took leave (for example, employees may be laid off for legitimate business reasons, such as the closure of a worksite). In addition, certain highly-compensated “key” employees, as defined under the FMLA, need not be reinstated.

Also, the CRA provides that if the employee takes expanded FMLA leave to care for a child due to the closure of the school or child care, the employer need not reinstate the employee if all four of the following hardship conditions exist: 

  • The employee’s position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of the leave;
  • The employer made reasonable efforts to restore the employee to the same or an equivalent position;
  • The employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
  • The employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after the leave began, whichever is earlier.

Q: How Are Hours Calculated for Part-Time and Variable Hour Workers? (Added 3/29/20)

A: Employers calculate hours of leave for these employees based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the employee’s schedule varies, employers may use a six-month average to calculate the average daily hours. Such part-time or variable hours employees may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If this calculation cannot be made because the employee has not been employed for at least six months, employers should use the number of hours that was agreed that the employee would work upon hiring. And if there is no such agreement, employers may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of their employment.

Q: Must Overtime Hours Be Included In Calculating Pay? (Added 3/25/20)

A: The DOL states that, under the expanded FMLA for the closure of a school or child care, employees are entitled to unpaid leave for the first two weeks and, thereafter, must be paid the hours that they would normally have been scheduled to work, including overtime.

Note, however, that under the Paid Sick Leave provisions of the CRA, Paid Sick Leave is capped at 80 hours. Thus, an employee who regularly works a 50 hour week, including overtime, would be entitled to receive 50 hours of Paid Sick Leave in the first week of expanded (unpaid) FMLA leave and 30 hours of Paid Sick Leave in the second week. Of course, under the law, the employee would be able to use any other available paid leave to cover any remaining unpaid portion of the expanded FMLA leave, before the paid portion of expanded FMLA leave kicks in at week three.

Of particular interest, the DOL states “that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.” (Emphasis added). Thus, while an employee’s regular hours must take into account overtime, the rate of paid leave does not.

Q: How Is The Rate Of Pay For The Paid Leave Mandates Calculated? (Added 3/25/20)

A: The rate of pay used to calculate paid leave is the average of the employee’s regular rate during the six-month period prior to the leave. Alternatively, the employer can take the total compensation earned by the employee and divide it by the total number of hours worked during that six-month period. If the employee has not worked for six months, the rate is the average of the employee’s regular rate for each week worked.

Commissions, tips and piece rates must be incorporated into the regular rate.

Q: What Does “Unable To Work Or Telework” Mean? (Added 3/27/20)

A: The DOL explains that telework is work that the employer permits or allows to be performed at home or outside of the normal workplace. Employees receive normal wages for telework; it is not paid leave under the CRA. Employees are unable to work, and therefore entitled to leave, if the employer has work available, but the employee is unable to perform the work, even by teleworking, for one of the specified COVID-19-related reasons.

The DOL further explains that paid leave under the CRA is not necessary if there is a change in schedule that allows the employee to work their normal amount of hours. In addition, leave is also not necessary if the employee is able to telework while caring for a child due to the closure of the child’s school or child care.

Q: Can CRA Leave Be Taken Intermittently? (Added 3/27/20)

A: According to the DOL, employees make take intermittent Paid Sick Leave or expanded FMLA leave only if permitted by the employer, but the DOL encourages collaboration between employers and employees “to achieve flexibility and meet mutual needs.”

Specifically as to teleworking, if the employee is unable to work their normal schedule of hours, the employer may – but is not required to – allow the employee to take Paid Sick Leave and/or expanded FMLA leave on an intermittent basis, in any agreed-upon increment.

As to the use of intermittent leave in the usual workplace, the DOL is less sanguine. The DOL notes that all but one of the reasons for Paid Sick Leave are intended to prevent the employee from spreading infection, which does not comport with leave on an intermittent basis. Thus leave for those reasons can only be taken in full-day increments that continue until the leave is exhausted or there is no longer a reason to take the leave. In the latter case, the employee may take any remaining leave for another qualifying COVID-19-related reason at a later time until December 31, 2020.

The DOL observes that the only reason for which intermittent leave in the usual workplace is possible would be due to the COVID-19-related closure of the child’s school or child care. Again, the use of intermittent leave in this situation would be subject to approval by the employer.

Q: Are Employees Entitled To CRA Leave During A Worksite Closure? (Added 3/27/20)

A: The DOL has made clear that employees are not entitled to Paid Sick Leave or expanded FMLA leave if the employer closes the worksite, regardless of whether the closure is due to economic conditions or because of a Federal, state, or local government directive (e.g. shut-down or shelter-in-place orders). If the employee is taking CRA leave when the closure occurs, any further right to leave ceases. Even if the closure is temporary, the employee may not take CRA leave during the closure. The employee may, however, be eligible for unemployment insurance benefits (although not if the employee is receiving any other form of paid leave,  whether by employer policy or state/local law).

Q: Are Employees Entitled To CRA Leave During A Furlough? (Added 3/27/20)

A: An employee is not entitled to take Paid Sick Leave or expanded FMLA leave while on furlough due to lack of work, even if the employer remains open. Again, the employee may be eligible for unemployment insurance benefits.

Q: Can Employees Use CRA Leave To Cover Reduced Hours? (Added 3/27/20)

A: If the employer reduces an employee’s scheduled work hours due to lack of work, the employee may not take Paid Sick Leave or expanded FMLA leave to cover the hours that they are no longer scheduled to work, since the reason for the reduction is not due to a listed reason, even though it may have been related to the COVID-19 pandemic.

Q: Can Employees Use CRA Leave While Receiving Unemployment Insurance Benefits? (Added 3/27/20)

A: The DOL states that employees taking Paid Sick Leave or expanded FMLA leave may not receive unemployment insurance benefits at the same time.

Q: Do Employees Continue To Get Health Insurance While Taking CRA Leave? (Updated 3/29/20)

A: Employees will be entitled to maintain their existing health coverage while on Paid Sick Leave or expanded FMLA leave. They are responsible for their normal premium contributions while on leave. If they do not return from leave, they may be eligible for health care continuation under the Consolidated Omnibus Budget Reconciliation Act (COBRA) or state mini-COBRA laws.

If an employee is in a waiting period for health coverage, the coverage will take effect upon completion of the waiting period regardless of whether the employee is on CRA leave at that point.

Q: What If CRA Leave Is Improperly Denied? (Added 3/29/20)

A: If an employee believes that they are entitled to but have been improperly denied Paid Sick Leave or expanded FMLA leave under the CRA, the DOL “encourages” them to raise their concerns with their employer. The DOL also informs employees that they can contact the DOL’s Wage and Hour Division for assistance or to file a claim. The DOL notes that employees can also file a lawsuit against their employer for such violations (although in the case of an FMLA violation, only if the employer has 50 or more employees).

Q: What Are The Penalties For Violating The CRA’s Paid Leave Mandates? (Updated 3/25/20)

A: Under the Paid Sick Leave provision, if an employer fails to pay sick leave or takes adverse action against an employee for exercising rights under the Act, it would be considered a violation of the Fair Labor Standards Act and subject to the normal penalties under the FLSA. These include a $10,000 fine and 6 months imprisonment. In addition to an administrative complaint process before the DOL, the employee or the Secretary of Labor may also file a civil suit against the employer seeking the amount of unpaid leave, an equal amount in liquidated damages, equitable relief, attorneys’ fees and costs, and injunctive relief.

If the employer violates the expanded FMLA provision, the normal FMLA penalties apply. The employee may file a complaint with the DOL, or may file suit against the employer. The employee may recover back pay and front pay, actual monetary loss, liquidated damages in an amount equal to the pay damages, attorneys’ fees and costs, and injunctive relief. The CRA, however, provides an exemption from civil suit for employers with fewer than 50 employees.

The DOL has issued a temporary non-enforcement policy establishing a 30-day period, from March 18 through April 17, 2020, during which it would will focus on compliance assistance. The DOL will refrain from bringing an enforcement action against an employer who has made reasonable, good faith efforts to comply with the Act, in that:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.
  2. The violations were not “willful,” (i.e. the employer knew or showed reckless disregard as to its obligation to comply with the law)
  3. The employers commits in writing to comply with the CRA in the future.

Of particular interest to employers concerned about being able to afford the paid leave mandates, the DOL states that:

For purposes of this non-enforcement policy, employers who are eligible for tax credits but who have insufficient cash flow should make payment of sick leave or family leave wages as soon as possible, but not later than seven 7 calendar days after the employer has withdrawn an amount equal to the required paid sick leave and expanded family and medical leave wages from the employer’s Federal payroll tax deposits or, to the extent such deposits are not sufficient, has received a refund of the credit amount from the IRS to cover the required wages.

THE CORONAVIRUS AID RELIEF AND ECONOMIC SECURITY ACT (Added 3/29/20)

Q: What Is The Coronavirus Aid Relief And Economic Security Act (CARES)? (Added 3/29/20)

A: On March 27, 2020, President Trump signed the Coronavirus Aid Relief and Economic Security (CARES) Act, a $2 trillion bill that contains provisions that will provide relief to businesses and individuals negatively impacted by the recent pandemic. Among other things, the Act contains the following provisions of particular interest to employers: it slightly modifies the Families First Coronavirus Response Act; it provides for tax credits to incentivize employee retention; it greatly expands unemployment insurance benefits for COVID-19 reasons; and it establishes three loan programs – for small businesses and nonprofits, for medium-sized businesses and nonprofits, and for state/local governments and special businesses.

Q: How Does CARES Affect The Families First Coronavirus Response Act? (Added 3/29/20)

A: The CARES Act amends the recently enacted Families First Coronavirus Response Act to clarify that employees who were laid off after March 1, 2020 and are rehired will qualify for COVID-19 related Paid Sick Leave and expanded FMLA as long as they worked for the employer for 30 of the 60 days prior to the layoff. In other words, the requirement that an individual be employed for 30 days to qualify for these benefits shall not exclude such rehired employees

Q: What Are The Employee Retention Credits Under CARES? (Added 3/29/20)

A: As an incentive for employers to keep employees on the payroll, the CARES Act includes a refundable tax credit for wages, including group health insurance premiums, paid by certain employers to employees employed between March 12, 2020 and December 21, 2020.

For profit employers eligible for the credit are limited to those whose business is fully or partially suspended due to government orders limiting commerce, travel or meetings due to the virus, or those whose quarterly gross receipts are less than 50 percent of gross receipts in the same quarter last year.  This eligibility ends when gross receipts recover to greater than 80 percent compared to the same quarter last year.

Nonprofit, tax-exempt 501(c)(3) employers are eligible for the credit if their operations are fully or partially suspended due to government orders limiting commerce, travel or meetings due to the virus.

“Qualified” wages has the following meaning:

  • If the average number of employees is greater than 100, qualified wages are wages paid while the employee is not providing services due to a government order, or due to a 50 percent decline in gross receipts. In other words, it applies to employees who otherwise might be laid off or terminated.
  • If the average number of employees is 100 or fewer, qualified wages are wages paid during the period when operations are fully or partially suspended OR during a period in which the employer had a 50 percent decline in gross receipts. This test does not include the “not providing services” language in the test applicable to employers with more than 100 employees.

Qualified wages for which the credit may be claimed does not include amounts paid while an employee is on paid leave pursuant to the Families First Coronavirus Response Act.

The amount of the credit is 50 percent of qualified wages subject to a ceiling of $10,000 per employee. The credit will be taken against the employer’s portion of payroll taxes, i.e., Social Security and Medicare tax.  If the credit exceeds the amount of taxes, the excess is refundable to the employer by the IRS.

The CARES Act also allows employers and self-employed individuals to defer payment of the employer share of the Social Security tax on employee wages. Half of the deferred employment tax must be paid by December 31, 2021, and the other half of the deferred employment tax must be paid by December 31, 2022.

These provisions are unavailable if the employer availed itself of the SBA loan forgiveness program in Section 1106 of the CARES Act.

Q: How Does CARES Impact Unemployment Insurance Benefits? (Added 3/29/20)

A: The CARES Act offers federal assistance with unemployment compensation benefits. Benefits also will be made available to individuals who normally are ineligible, such as independent contractors and self-employed individuals. 

In addition, eligibility for unemployment compensation insurance (“UI”) benefits will be extended to individuals who are not eligible for regular or extended UI benefits (including those who have exhausted benefits) who certify that they are otherwise available for work within the meaning of UI rules but are unemployed (or partially unemployed), or are unable or otherwise unavailable for work for any of the following reasons:

  • The individual has been diagnosed with COVID-19 or has symptoms of COVID-19 and is seeking treatment;
  • A member of the individual’s household has been diagnosed with COVID-19 or has symptoms of COVID-19 and is seeking treatment;
  • The individual is providing care for a family or household member who has been diagnosed with COVID-19;
  • A child or other person in the household for whom the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a result of the COVID-19 public health emergency and such care is required in order for the individual to be able to perform work;
  • The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency;
  • The individual is unable to reach the place of employment because the individual has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  • The individual is scheduled to start employment and does not have a job or is unable to reach the job as a direct result of the COVID-19 public health emergency;
  • The individual has become the sole breadwinner or major support of the household because the head of the household has died as a direct result of COVID-19;
  • The individual has had to quit his or her job as a direct result of COVID-19;
  • The individual’s place of employment is closed as a direct result of the COVID-19 public health emergency; or
  • The individual meets other criteria established by the DOL Secretary for unemployment assistance.

Individuals who meet the criteria for eligibility will be entitled to an additional $600 per week above the amount allowed for benefits under state law for up to four months. These additional payments are funded by the federal government.

Notably, individuals who are able to work or telework are not eligible for benefits, nor are those who are receiving paid leave under the Families First Coronavirus Response Act, regardless of whether they meet one of the above criteria.

Q: What Is The Loan Program For Small Businesses And Non-Profits Under CARES? (Added 3/29/20)

A: Non-profits and small businesses are eligible for forgivable loans, through the Small Business Administration, or approved financial institutions, of up to 2.5 times monthly payroll (including benefits and state and local taxes) or $10 million, whichever is less.  The loans may be used for payroll (including employee benefits), rent, mortgages, utilities and interest on other debt, incurred between February 15 and June 30, 2020.  The loans cannot be used to pay an individual at a rate exceeding $100,000 per year. 

The portion of the loan used for payroll (including tips, benefits, COBRA, leave, and state and local payroll taxes), mortgage interest, rent and utilities, over an 8-week period prior to origination of the loan will be forgiven.  If the employer reduces the number of full-time equivalent employees or reduces the pay of an individual employee more than 25 percent, the amount forgiven will be reduced.

These loans are available to small businesses, generally defined as manufacturing companies with 500 employees or fewer and non-manufacturing companies with average annual receipts under $7.5 million.  Independent contractor and self-employed individuals are also eligible.  Hotel and restaurants businesses, with not more than 500 per location, are also eligible. 

Critically, employers who take a loan under this provision are not eligible for the payroll tax credit in the Act.

Q: What Is The Loan Program For Mid-Sized Businesses And Non-Profits Under CARES? (Added 3/29/20)

A: The CARES Act also creates a program for mid-sized businesses (and non-profits, where “practicable”), defined as having between 500 and 10,000 employees. The interest rates for these business loans shall be capped at 2%, and the borrower will not be required to pay principal and interest for at least the first 6 months. Eligible borrowers must make several good faith certifications to receive this loan, including that the funds received will be used to retain at least 90 percent of the recipient’s workforce, at full compensation and benefits, until September 30, 2020, not paying dividends, not abrogating collective bargaining agreements, and not outsourcing or offshoring jobs for the term of the loan and 2 years after completing repayment of the loan.

This program, however, may negatively impact employer labor relations strategies. Specifically, employers will be required to maintain neutrality regarding union organizing efforts during the term of the loan. During that time, employers will be unable to notify employees about the potential risks of unionizing. For example, the employer would be prohibited from discussing the costs of unionization (union dues), risks of strikes, or even the mere fact that the employer is not obligated to agree to union proposals during collective bargaining. Such statements are typically protected by the National Labor Relations Act. As a result, employees are likely to only hear one side of the argument – the union’s side, which often includes unrealistic promises – which increases the likelihood that employees will choose union representation.

Q: What Is The Loan Program For State And Local Governments And Special Businesses Under CARES?

A: To cover losses due to COVID-19, the Act appropriates money for negotiated loans to state and local governments and businesses, such as air carriers, businesses critical to national security, and financial firms.  Recipients are required not to reduce employment levels by more than 10 percent.

WORKPLACE SAFETY AND HEALTH

Q: What General Safety And Health Obligations Do Employers Have With Regard To Their Workplace?

A: The Occupational Safety and Health Administration oversees workplace safety and health, and establishes relevant workplace standards. There is no specific standard for respiratory diseases like COVID-19 in the workplace. Under the Occupational Safety and Health Act, however, employers are required to provide a safe and healthy working environment, which would include taking appropriate steps to prevent and address COVID-19 in the workplace. Employers must furnish a place of employment free from recognized hazards that may cause death or serious physical harm.  Employers should conduct a workplace hazard assessment and take control measures. OSHA has provided detailed and specific guidance to employers on the recommended actions to take during this current COVID-19 emergency.

Q: What Measures Should Employers Take With Regard To Workplace Hygiene And Disinfection?

A: Employers should communicate with and train employees on its expectations of hygiene, which should be consistent with current CDC and OSHA guidance. According to that guidance,

Employees should be trained or reminded to take preventive steps in the workplace to avoid spreading 2019-nCoV as well as other infections, like the flu or a cold. These steps include:

  • Washing hands frequently with soap and water for at least 20 seconds at a time.
  • Using an alcohol-based hand sanitizer in areas without soap and water.
  • Covering the mouth and nose with a tissue or sleeve (not hands) when coughing or sneezing.
  • Staying at least 6 feet away from others.
  • Refraining from touching face.
  • Refraining from using other employees’ equipment.
  • Staying home if they are showing any symptoms of COVID-19 or other illness.
  • Seeking medical treatment immediately if symptoms appear following travel or other exposure to 2019-nCoV. The CDC suggests calling ahead to the medical center or doctor’s office before arriving, to allow them to prepare to minimize contact with other patients.
  • Reporting to a designated Company official if the employee or household member has been diagnosed with or exposed to COVID-19.

Employers should also take the following steps to facilitate prevention and mitigation in the workplace:

  • Review sick leave policies to ensure that they are flexible, and communicate them to employees.
  • Report diagnoses and possible exposure to the local Department of Health, which will provide further guidance on appropriate steps for the employer to take.
  • Provide soap and handwashing facilities.
  • Provide alcohol-based hand sanitizer.
  • Provide cleaning spray and/or wipes.
  • Provide tissues.
  • Perform regular housekeeping, with particular attention to sanitizing and disinfecting frequently-touched surfaces (e.g. light switches, door handles, desktops, countertops, refrigerator and cabinet handles, etc.).

Q: Must Employers Permit Employees To Wear Gloves, Masks, Or Other Personal Protective Equipment?

A: With certain exceptions (e.g. healthcare), the CDC does not currently recommend use of masks and gloves.  Employers are not required to allow the use of personal protective equipment unless the employee has a disability and his or her doctor has identified the use of a mask or gloves as a possible accommodation. If that is the case, the employer should engage in an interactive discussion with the employee regarding the requested accommodation. The employer may obtain relevant medical information regarding the employee’s condition and how the use of a mask or gloves would be a reasonable accommodation.

Under OSHA’s respiratory protection standard, 29 C.F.R. § 1910.134, a respirator (which includes safety masks) must be provided by the employer “when such equipment is necessary to protect the health of such employees.” The rule also provides that “an employer may provide respirators at the request of employees or permit employees to use their own respirators, if the employer determines that such respirator use will not in itself create a hazard.” (Emphasis added). The language does not require employers to permit such use, absent the need to protect the health of the employee.

Q: What If The Employer Chooses To Allow Employees To Wear A Mask Or Gloves?

A: If employees are permitted to wear masks or gloves at their choice, there may be employer obligations relating to their use. There are no such obligations if the employee is using a standard surgical mask, because that is not considered a respirator under the OSHA respirator standard. If they are using a NIOSH 95 (N95) mask, however, it is considered a respirator and OSHA has stated that the employer must provide Appendix D of the OSHA respiratory standard to such employees. The employer does not need to provide any further information or take any additional actions beyond that.

If employers permit the use of nitrile gloves, they must conduct training on their use, § 1910.132(f).

Q: How Else Can Employers Protect Their Employees Still Working On Site?

A: Employers should encourage “social distancing.”  Employees should keep a reasonable distance (at least six feet) from other employees.  Some ideas for social distancing include:

  • Relocating work stations or desks to maximize distance.
  • Staggered work schedules to decrease the number of employees in the workplace at once.
  • Split shifts, under which employees alternate coming to work and teleworking.
  • Eliminate or modify shared meals for employees.
  • Suspend or limit on site and off site group meetings. These may actually be required under state emergency orders.
  • Consider closing offices to visitors and the public, if possible

TELECOMMUTING

Q: Should Employers Permit Employees To Work Remotely?

A: Employers must assess their ability and capacity to permit remote work.  Employers should test their capabilities for remote work as soon as possible.  Permitting employees to work remotely is a good option where feasible.  Doing so will also reduce the risk of creating an unsafe work environment as such employers will be following the guidance of public health officials. If remote work is permitted or required, employers should consider the following:

  • Whether employees have the necessary equipment and remote access
  • Security considerations for company equipment and information.
  • Whether employees have a safe work environment at home. While OSHA does not govern home workspaces, any illness or injuries resulting out of telework may be subject to the reporting requirement under OSHA.
  • Workers’ compensation may apply to illnesses or injuries suffered in the course of teleworking.
  • Establish clear expectations regarding schedules, availability, and modes of communication.

Reinforce that employees are expected to maintain productivity and quality standards while working remotely.

Q: Must Employers Cover Equipment Costs For Telecommuting Employees?

A: Employers should consider providing remote work equipment to their employees, or reimbursing employees for the necessary equipment.  Federal law does not require reimbursement, however employers must reimburse employees to the extent such costs brings a non-exempt employee’s wages below minimum wage.  As to exempt employees, requiring them to bear the cost or deducting such costs from their salary would violate the salary basis requirement, and thus the employer should cover any related telecommuting costs for these employees. Employers must also be mindful of state laws addressing reimbursement of business expenses, as some states require employers to cover any such costs.

Additionally, if remote work equipment is considered a reasonable accommodation under the ADA, the employer must cover the expenses. Similarly, the ADA requires that reasonable accommodations be provided to enable disabled employees to enjoy the terms and privileges of employment; so if the employer if the employer is permitting employees to telework, they may need to provide equipment to disabled employees that would allow them to work remotely.

Q: If Employers Permit Remote Work, Are They Setting A Precedent?

A: Employers must be mindful that when deciding whether employees can work remotely, they may be setting a precedent for future reasonable accommodation requests under the ADA.  Employers must provide reasonable accommodations to qualified individuals with disabilities unless doing so will present an undue hardship.  Telecommuting may be a reasonable accommodation where the employee can perform the essential functions of his or her job from home.  Remote work arrangements in response to COVID-19 may undermine employers’ ability to validly decline telecommuting requests as a reasonable accommodation moving forward.

The employer, therefore, must carefully consider whether the essential functions of the job can adequately be performed at home.  If an employer permits telecommuting where it would not generally do so, it should make clear that it is making such accommodations as a result of the extraordinary circumstances of COVID-19 and this does not serve as a precedent moving forward. Consider requiring employees to execute telework agreements that make clear that this is a temporary measure, and that teleworking full time does not permit the employee to perform all essential functions of the employee’s job.

Q: How Do Employers Compensate Employees Working Remotely?

A: Non-exempt employees should accurately track their working time and be paid for all time spent working, in accordance with all federal, state, and local laws.  Employers should ensure that there is a means by which employees can easily record their time, whether electronically or even on paper.

Exempt employees must be paid their full salary if they perform any work during the workweek, which could involve tasks as minor as regularly checking email.

Q: What Reasonable Accommodations Must Be Provided to Enable Disabled Employees to Telecommute? (Added 3/23/20)

A: Under the Americans with Disabilities Act, employers must provide reasonable accommodations to employees with disabilities to enable them to perform their essential job functions or to enjoy the privileges and benefits of employment. If the employee requires workplace accommodations, such as specialized equipment, the employer may need to ensure that the employee continues to have access to such accommodations when working at home. The employer should engage in the required interactive discussion to determine whether such at-home accommodations are reasonable under the circumstances.

The EEOC recognizes, however, that under the current circumstances, there may be delays in the normal interactive process. It encourages employers and employees to use interim solutions to enable the employees to continue working.

TRAVEL

Q: How Should Employers Handle Business Travel?

A: Currently, it is best practice, and may be mandated by state and local government, to avoid all non-essential business travel.  Employers should explore substitute options for travel, such as teleconferencing and video conferencing.

Employers can still require essential business travel at this time.  Employers should carefully decide what travel is essential.  They should, however, avoid requiring any business travel to all CDC Level 2/3 countries.

We note that all public health agencies and governmental authorities are recommending that any travel be avoided. In some cases, travel may even be prohibited. Please check for any applicable restrictions before requiring any travel.

Q: What If Employees Express Concern Regarding Travel?

A: Assuming that travel is still being permitted by governmental authorities and the travel is deemed essential, if employees express concerns regarding the means of travel, or travel in and of itself, the employer should perform a risk assessment.  Assess the location of travel and means of travel.  Air travel will potentially pose a greater risk than driving.  Evaluate risk factors possessed by the employee such as age, pregnancy, underlying medical conditions, and mental health disorders.  Employers should assess whether ADA accommodations are available that pertain to travel.  If an employee expresses concern regarding travel, evaluate other options such as teleconferencing, videoconferencing, or whether another employee can travel instead.

Q: Can Employers Place Limits On Personal Travel?

A: Employers can require compliance with CDC travel restrictions.  Whether other travel may be prohibited depends on state law.  Some states have legal off-duty conduct laws that prohibit employers from taking any adverse employment action based on such conduct, which would include travel.

Employers can and should require employees traveling to CDC Level 2 or 3 countries or areas of outbreak to self-quarantine for 14 days before return to work, even if the employee exhibits no symptoms. At this time, many employers are taking the precaution of requiring such self-quarantine for any travel, given the increasing community spread occurring within the U.S.  If such self-quarantine is not required by the employer, it can still require employees traveling to non-outbreak areas to self-monitor and report any COVID-19 symptoms or exposure to COVID-19.

In addition, we believe that an employer may deny an employee’s request for leave (during which the employee would travel) based on the negative impact on the business if the leave were to be granted – i.e. that following the leave, the employee would have to remain out of work for an addition 14 days. This assumes that the employee could not telework during the 14-day period.

EMPLOYEES WITH SYMPTOMS OF OR EXPOSED TO COVID-19

Q: Can Employers Require An Employee To Notify Them If They Have Been Exposed To COVID-19, Have Symptoms, Or Tested Positive?

A: Yes, such employees should be required to notify their supervisors if they are experiencing symptoms of, if they have been diagnosed with, or if they have been exposed to COVID-19. An employee with COVID-19 poses a direct threat to the health and safety of others, and therefore employers are entitled to know about any such diagnosis.

Q: What Restrictions Does The ADA Place On Employers’ Ability To Ask Questions About An Employee’s Health Or Medical Condition? (Updated 3/23/20)

A: The ADA restricts medical inquiries to those that are job related and consistent with business necessity.  This standard is met if the employer has a reasonable belief that the employee poses a direct threat to the health or safety of the individual or others in the workplace.

Employers are generally prohibited from asking employees whether they have compromised immune systems or a health condition that would make them more susceptible to COVID-19.  The EEOC has now announced, however, that the COVID-19 emergency constitutes a direct threat, as determined by the CDC and public health officials.  Therefore, employers may ask employees whether they have compromised immune systems or chronic health conditions that makes them more susceptible to COVID-19. This information can be used for business planning purposes, in case these individuals are affected by COVID-19, but should not be used to force employees out of the workplace, as that may lead to a discrimination claim.

Q: Can Employers Ask Employees Whether They Have Been Experiencing Symptoms Of Illness?

A: Yes. The Equal Employment Opportunity Commission has released guidance with regard to the current COVID-19 pandemic, which also relies on their earlier pandemic guidance. According to the EEOC, asking about an employee’s symptoms is not a medical inquiry. Therefore, employers may ask if employees are experiencing symptoms of COVID-19.

As mentioned above, employers may always require employees to report if they are diagnosed with COVID-19.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Q: May Employers Take Employees’ Temperatures To Determine Whether They Are Infected? (Updated 3/23/20)

A: While the EEOC takes the position that taking an employee’s temperature is generally an improper medical examination, under the current circumstances the EEOC has revised its guidance to state that employers may take do so during the COVID-19 pandemic, as the situation has risen to the level of a direct threat.

As a practical matter, temperature readings are not always accurate.  Additionally, an individual with COVID-19 does not always have a fever or symptoms, so a temperature check may not be the most effective method to protect the workplace and it may instill a false sense of security amongst employees.

Q: How Else Are Employers Permitted To Screen Employees To Protect Against COVID-19?

A: Employers may conduct other non-medical screenings by asking employees about travel or close contact with an individual who has traveled to an area of outbreak.  Employers may also ask employees about possible exposure to COVID-19 or household members’ exposure to COVID-19.  When screening employees, exercise caution to ensure employees are not targeted for screening based on race or national origin.  Preventative measures and screening should be implemented and enforced uniformly and consistently.

Q: Are Employers Permitted To Screen Visitors?

A: Employment laws do not apply to visitors.  Employers may conduct screening to determine whether a visitor has travelled to or had close contact with someone who has traveled to an area of outbreak.  Employers may also ask about possible exposure to COVID-19, and whether the prospective visitor is experiencing symptoms of illness. Employers can ban all or some visitors from the workplace. Some employers, in fact, may be required to ban or restrict visitors under emergency state directives.

Q: Are Employers Permitted to Screen Applicants? (Added 3/23/20)

A: According to the EEOC, employers may screen applicants for COVID-19 symptoms and exposure and take their temperature after a conditional offer of employment has been made, as long as it does so for all entering employees in the same type of job. Employers may also delay the start date, or even withdraw a job offer, if the applicant has COVID-19 and cannot start work immediately if required.

Q: What Are Employers’ Obligations With Regard To Employees With Mental Health Conditions Triggered By COVID-19? (Added 3/23/20)

A: Under the Americans with Disabilities Act, employers must provide reasonable accommodations to employees with disabilities, including mental health conditions. Such conditions could, in fact, be triggered by fears about the current COVID-19 pandemic. With regard to employees reporting such mental disabilities, the employer must engage in the requisite interactive process under the ADA. The employer is entitled to obtain information from the employee’s health care provider to establish that the employee does, in fact, have a disability and to identify possible accommodations. Whether such accommodations are reasonable or pose an undue burden are part of the interactive process.

EMPLOYEE REFUSAL TO WORK

Q: Can An Employee Refuse To Work Because Of Concerns About Workplace Safety?

A: OSHA has provided guidance as to when an employee may refuse to work because of safety concerns. https://www.osha.gov/right-to-refuse.html. This guidance states that an employee may refuse to perform a task if all of the following conditions are met:

  • Where possible, the employee has asked the employer to eliminate the danger, and the employer failed to do so; and
  • The employee refused to work in “good faith.” This means that the employee must genuinely believe that an imminent danger exists; and
  • A reasonable person would agree that there is a real danger of death or serious injury; and
  • There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

If an employee expresses a concern about coming to work because of possible exposure to COVID-19, employers should assess whether the employee is more susceptible to the virus due to age, pregnancy, or an underlying medical condition (the latter two may trigger obligations under the Americans with Disabilities Act, although at least one court has held that the possibility of become disabled is not covered by the ADA).  Employers should also assess whether an employee refusing to work has a reasonably held concern, such as regarding other individuals visiting the workplace from areas of outbreak, being allowed to use gloves or masks, or even just a generalized fear of leaving home at this time.

If the concerns are not reasonable, the employer may insist that the employee report to work and may take appropriate disciplinary action against those who refuse to do so. However, under the current circumstances, with the increasing community spread of COVID-19 and the governmental limitations or directions to remain at home as much as possible, we believe that generalized fears of exposure may not necessarily be deemed unreasonable.

Notably, some employers have concerns that treating older employees differently than younger ones may be a violation under the Age Discrimination in Employment Act or state antidiscrimination laws. We note that, given the medical fact that such individuals are more susceptible to the virus or may experience more serious outcomes, and given the governmental recommendations that such older individuals stay home as much as possible, permitting older individuals to stay home while not extending that courtesy to younger employees will not likely be considered a violation of antidiscrimination laws at this time.

If several employees express common concerns as a group, or one employee speaks on behalf of a group, it may be considered protected concerted activity under the National Labor Relations Act.  This is true in both unionized and non-unionized workplaces.  Employees need only have a “reasonable held, good-faith belief that the health or safety conditions being protested are unsafe,” and the conditions need not actually be unsafe.  Employees engaging such in concerted activity remain protected even where they are honestly mistaken about the conditions believed to be unsafe.  Therefore, employers may not discipline employees engaging in protected concerted activity who refuse to work based on the reasonably held, good-faith belief that working conditions are unsafe.  Employers must examine such situations on a case-by-case basis, and should consult with counsel regarding what actions, if any, they can take as to these employees.

EMPLOYEES TESTING POSITIVE FOR COVID-19

Q: What Should An Employer Do If An Employee Tests Positive For COVID-19?

A: Isolate and immediately send the employee home. Immediately contact the local Department of Health for guidance on what steps should be taken. At a minimum, however, the employee should remain at home for 14 days, or until they have been cleared to return to work by their health care provider.

The employer should communicate with those who may have been in contact with the infected employee. Therefore, employers should ask the employee with whom he or she came into contact in the last 14 days. These individuals should be informed, without disclosing the name of the infected employee, that they have been exposed to an individual who has tested positive, that the Health Department has been contacted and the company is following all recommendation of the Department, and identify those recommendations. This will almost certainly include a 14-day quarantine period for those individuals, with self-monitoring.

There are also reporting requirements. Employers should inform the Department of Health and CDC of a positive test. In cases of work-related infections, there may also be reporting requirements under the Occupational Safety and Health Act, as discussed further below.  incident.  Also, it may also be a workers’ compensation event, requiring employers to notify their workers’ compensation carrier.

Employers should also ask the infected employee to identify all areas in the office where they were physically present in the previous 14 days.  Deep clean the employee’s work area, surrounding areas, and all areas the employee indicated he or she was physically present during the previous 14 days.  Building management should be called so they can take precautionary sanitizing and notification measures.

Remember that any medical information received with regard to this situation is considered confidential medical information under the ADA, the FMLA, and, if the employer is a covered entity, the privacy provisions of the Health Insurance Portability and Protection Act (HIPAA). Any written information must be kept in a separate and secure medical file. This information should only be shared with management officials on a need to know basis. If other employees must be informed that they may have been exposed, the name of the infected employee must not be shared as part of the communication. While, realistically, other employees will know who the infected individual is, employers may not disclose that information.

Q: What Actions Should Employers Take When an Employee Exhibits Symptoms of COVID-19 or Has Been Exposed to Someone With COVID-19? (Updated 3/23/20)

A: If an employee is at work when they report symptoms of COVID-19, they should be immediately isolated from others and sent home. They should also be instructed to follow up with a health care provider and update the employer as to whether the health care provider believes it may be COVID-19 or some other illness.

If an employee exhibits symptoms of or reports that they have been exposed to COVID-19, we recommend contacting the local Department of Health for further guidance on next steps. Such steps may include quarantining the employee, communicating with other employees about possible exposure, and possibly quarantining other employees. In our experience thus far, it appears that the latter two actions are not being required by the Departments of Health where the employee has been exposed to COVID-19 but is not showing symptoms; nonetheless employers may make the decision that such steps are appropriate.

Notably, when informing others about possible exposure to the infected employee, the employer must not disclose the employee’s name, as that would be a violation of the duty to keep medical information confidential. As a practical matter, it is likely that other employees can easily figure out who the infected employee is, but that does not relieve the employer from its duty to maintain employee confidentiality.

The employer may wish to perform deep cleaning of any work areas where an infected employee has been present.

Q: Is An Employee Who Contracts COVID-19 Protected Under The Americans With Disabilities Act?

A: Employees are protected by the Americans with Disabilities Act (ADA) if they have a disability, have a history of a disability, or are regarded as having one. A disability is a substantial limitation of a major life activity. Because COVID-19 is a transitory and typically minor condition for most people, it will generally not be considered a covered disability. Complications from COVID-19, such as difficulty breathing, may substantially limit a major activity and implicate the ADA.

Employers must ensure not to make assumptions about an employee’s illness and treat them as disabled, as they risk a “regarded as” claim under the ADA.

Q: Is An Employee Who Contracts COVID-19 Protected Under The Family And Medical Leave Act? (Update 3/23/20)

A: Under the Family and Medical Leave Act, employees may receive up to 12 weeks of unpaid leave for their own serious health condition. COVID-19 does not necessarily rise to the level of a “serious health condition,” as mild cases are similar to the flu, which is not a covered serious health condition absent complications. Certainly more serious infections would meet that standard. At this point, given the intense focus on COVID-19 protections, however, employers may wish to err in favor of coverage even for those mild cases, if so desired by the employee. On the other hand, if the employee’s COVID-19 infection would not be considered a serious health condition, it should not be counted as FMLA leave, as that would deprive the employee of access to that leave if he or she later experiences a true serious health condition. Illnesses other than COVID-19, unless they are sufficiently severe, would not be covered by FMLA.

No pay will be required (other than the employee’s right or employer’s mandate that available paid leave be substituted) for leave under existing FMLA provisions. The CRA’s FMLA paid leave mandate does not apply to regular FMLA leave, including for the illness of the employee or family member.

Q: What Other Leave Is Available To Sick Employees?

A: A number of states and local jurisdictions have passed laws requiring employers to provide paid sick leave, and employees would certainly be able to use such leave for a COVID-19 infection or other illnesses.  In addition, several states have implemented paid family leave benefits, which provide pay replacement benefits for unpaid leave through a state program similar to unemployment insurance. These benefits may also apply. Employees may be eligible to use employer-provided leave, vacation, or paid time off, depending on the employer’s policies.

Under the CRA, employers with fewer than 500 employees have to provide sick employees with ten days of paid sick leave, but not paid FMLA leave, for COVID-19, but not for any other illness.

If no paid leave is available, employers should make unpaid leave available to employees with COVID-19.  Employers may also want to consider, in the absence of formal paid leave policies and where economically feasible, simply to provide pay to cover the unpaid leave.  This can come in the form of continuing employees’ regular pay, allowing employees to borrow against future paid leave (where the employee has exhausted all available paid leave) and permitting employees to enter into a negative state of accrual, or partial pay. Some employers are also exploring the idea of a leave donation program, where other employees can donate extra accrued leave for use by those without any paid leave available.

Q: Are COVID-19 Illnesses Covered By Workers’ Compensation?

A: If an employee contracts the virus at work, including while teleworking, it will likely be covered by workers’ compensation.  The employer should report this to its carrier.  As a practical matter, it may likely be nearly impossible to make this determination as community spread becomes more prevalent.

Q: Is An Employee Contracting COVID-19 At Work A Reportable And/Or Recordable Event Under The Occupational Safety And Health Act (OSHA)?

A: If an employee’s COVID-19 illness is work-related (which may be hard to determine) and the employee gets medical treatment or has restricted work activity, or is out of work, the illness must be recorded on the employer’s OSHA Form 300, and a Form 301 must also be completed.

If the infection is work related, and the infected employee is hospitalized as an in-patient, the hospitalization must be reported to OSHA within 24 hours of the incident. If the infected employee is not hospitalized as an in-patient but dies from the infection, the death must be reported to OSHA if it occurred within 30 days of the work-related incident.

Q: When May A Sick Employee Who Exhibited Symptoms Return To Work?

A: The employee should follow their health care provider’s instructions with regard to when they can return to work.  Although employers may require return to work clearance from a physician under the Americans with Disabilities Act and, if applicable, under the Family and Medical Leave Act (assuming that the employer has complied with the FMLA requirements as to fitness for duty certifications, discussed below), the CDC and the Equal Employment Opportunity Commission (EEOC) are both recommending that employers refrain from requiring such clearance at this time, given the expected burden on health care providers resulting from the anticipated widespread nature of the outbreak. The EEOC has suggested that a short form certification, such as an email or stamp, should be accepted. At this point, the CDC is recommending that employees not return to work until they are symptom free for at least 24 hours without the use of fever-reducing or other symptom-altering medicines.

An employer may require that an employee who has taken FMLA leave for his or her own serious health condition submit a fitness for duty certification from a health care provider before returning to work. The employee must be notified of this requirement in the Designation Notice and the employee’s job description or other written description of essential job functions should be attached for the healthcare provider’s use. Employers may require a fitness for duty certification only with regard to the particular condition that caused the employee’s need for FMLA leave.  An employer may delay the employee’s restoration to his or her position until the fitness for duty certification is submitted so long as the employer has provided written notice of the certification requirement.

Note that many state and local sick leave laws prohibit an employer from requiring a doctor’s note if the employee has been out of work for less than a certain number of days (two or three, depending on the law).

Q: What If An Employer Requires Employee(s) To Self-Quarantine Because Of Exposure To COVID-19?

A: FMLA does not apply because such a quarantine does not meet the definition of a “serious health condition.”  State FMLA provisions may provide more protection.  Unemployment insurance benefits may apply depending on state law interpretation. The U.S. Department of Labor has issued guidance that states have the discretion to grant such benefits where an individual is quarantined with the expectation of returning to work after the quarantine is over or an individual leaves employment (temporarily) due to a risk of exposure or infection.

Q: What If The Government Requires Quarantine?

A: State law may provide employment protections for employees under health care or government mandated quarantines (e.g. Maryland).  FMLA may apply as well, if the employee is being checked on a regular basis by a health care provider at the behest of the government, since that may meet the required definition of a serious health condition (which covers continuing treatment, including seeking a diagnosis, by a health care provider on two or more occasions within 30 days).

As noted above, states have the discretion to grant unemployment benefits under such circumstances. Washington and Rhode Island have passed emergency legislation specifically providing for unemployment insurance benefits in such a scenario.  The CRA also encourages coverage for COVID-19-related reasons.

State and local sick leave laws may allow use for quarantines.  The CRA also provides paid sick leave that may be used for this purpose.  Paid family leave benefits laws may also apply.

Q: In The Event Of A Quarantine, How Are Employees Paid?

A: Exempt employees are paid for a full week of work if they do any work during the week. This includes checking email on their phones.  Exempt employees can be told not to perform any work during a full week and they will not be paid for the week (assuming no other paid leave protections apply).  Additionally, exempt employees can be required to use paid vacation or PTO to cover partial weeks so that they still receive a full week of pay.  They must be paid for a full week if they do not have paid leave to cover such time.  If sick leave applies and the exempt employee has no sick leave left, employers can deduct whole day absences. Bear in mind that employees receive paid sick leave if their employers are covered under the CRA.

Non-exempt employees are paid for all time spent working, and must accurately track hours worked.  Non-exempt employees may be required or allowed to use PTO or vacation.  Employers should consider allowing the use of sick leave, if not mandated by state law.  Non-exempt employees will receive paid sick leave if their employer is covered under the CRA.

Q: Do School Closures Impact Payment Obligations?

A: The state or local sick leave laws in some jurisdictions will apply in the event of school closures.  Employers are encouraged to permit employees to use paid leave, including sick leave, to cover resulting absences.  Additionally, covered employees will receive paid sick leave and paid FMLA leave under the CRA for this purpose.

FURLOUGHS, LAYOFFS, AND CLOSURES

Q: What Are Considerations For Employers Who Need To Implement A Reduction In Force (“RIF”)?

A: If employers conduct layoffs, they must ensure such selections are job-related and do not have an adverse impact on the basis of a protected characteristic, such as race, age, sex, national origin, religion, or disability.

If a covered employer closes a facility or operating unit affecting at least 50 employees or lays off more than 50 or more full-time employees, and those layoffs constitute a third of the workforce at that site and will last at least six months, the employer must comply with specific WARN Act notifications.  Covered employers must also comply with WARN Act notifications if they lay off 500 or more employees at a worksite for at least six months, regardless of whether the number of employees laid off constitutes a third of the workforce at that site.  Some states have “mini-WARN” Act requirements that apply to lower thresholds, as well as state, county, and local laws and ordinances that may require notices for certain workforce reductions or changes.

Q: What Must Employers Be Mindful Of If They Furlough Employees?

A: If employers furlough an exempt employee for the entire workweek, no salary is owed for that week. If an exempt employee, however, performs any work during the workweek, he or she must receive their entire salary. It is possible to reduce an exempt employee’s salary for a period of time if the employee is expected to perform less work during that period. This may be subject to state law notice requirements as to changes in pay or benefits. Because of the fraught nature of this action, employers should consult with counsel if considering this option.

Non-exempt employees must be compensated for all hours worked, whether they are in or out of the office. They need not be compensated for hours not worked.

When employees are furloughed, employers should communicate the expectation that employees will not work, including checking email and voicemail.  Work is not authorized during the furlough period absent written approval. If an employer implements furlough days, employees may be able to obtain unemployment insurance benefits for the reduction in wages.  This will vary by state. Additionally, a furlough of six months that otherwise meets WARN requirements will trigger WARN’s 60-day notice requirement.

PLANNING FOR COVID-19

Q: For Unionized Employers, What Bargaining Obligations Exist When Developing Response Plans?

A: Employers should begin by examining their collective bargaining agreement.  The management rights clause, or provisions regarding leave, telework, and other pertinent subjects may dictate determine whether the employer may unilaterally act.  Employers may be required to provide notice and an opportunity to bargain to the Union as to any changes in leave administration.

Employers with unionized workforces have a duty to bargain in good faith regarding mandatory subjects of bargaining. Mandatory subjects of bargaining are typically summarized as employee wages, hours, and working conditions. Generally, where an employer wishes to alter a mandatory subject of bargaining, it must first notify the Union of the proposed change and, upon request, bargain with the Union over the change. Under the NLRA, this principle is applicable even where the change may be precipitated by emergency conditions.

The duty to bargain may be suspended where an employer faces a compelling economic exigency, and the exigency compels immediate action. Such events are generally defined as extraordinary, unforeseen events having a significant economic impact requiring an employer to act immediately. The NLRB assesses each assertion of “compelling economic exigency” on a case-by-case basis.

Potential bargaining issues include:

  • Paid time off for testing
  • Periodic mandatory testing
  • Payment for testing
  • Longer or additional shifts for coverage
  • Relaxing the prohibition against cross-classification work or management performance of work
  • Relaxation/modification of attendance and leave rules
  • Salary continuation for quarantine/school closures/family illness
  • Support programs for quarantined/ill employees
  • Workplace safety concerns

Employers must also be sure to comply with existing CBA provisions such as layoff and recall, shutdowns, filling vacancies, attendance and leave rules, short term disability, accommodations and return to work, and illness reporting.

When employees are furloughed, employers should communicate the expectation that employees will not work, including checking email and voicemail.  Work is not authorized during the furlough period absent written approval. If an employer implements furlough days, employees may be able to obtain unemployment insurance benefits for the reduction in wages.  This will vary by state. Additionally, a furlough of six months that otherwise meets WARN requirements will trigger WARN’s 60-day notice requirement.

Q: What Should An Employer Response Plan Contain?

A: As recommended by the CDC guidance, a thorough response plan should consider the following:

  • Identify leadership and points of contact.
  • Possible exposure and health risks should be identified and addressed.
  • Explore social distancing strategies and physical changes to the workplace to facilitate social distancing.
  • Identify essential business functions and roles and how to cover these functions when employees fall ill or are unavailable to work due to widespread school closures.
  • Inform staffing agencies that their sick employees should stay home, and they should administer non-punitive leave policies.
  • Plan communications to its workforce, clients, and vendors as necessary.
  • Institute flexible workplace and leave policies, as appropriate for the individual workplace.
  • Communicate with public health officials and community resources that can assist both the employer and its employees during this pandemic.

Q: What Should Be Contained In Written Policies Specific To COVID-19?

A: Employers should implement an illness policy informing employees whether there are restrictions on travel or other activities.  The employer’s policy should contain reporting requirements for illnesses/exposures, including to whom reporting should be made.  Dictate when employees are required to stay home due to illness or quarantine, and whether employees will be paid for absences.  Employers should set forth the benefits available to its employees, and whether return to work clearances are required.  Given the fluidity of the pandemic, make clear that the policy may be subject to revision.

Employers should implement state-mandated sick leave policies if they have not done so.  If sick leave policies are in place, they should be reviewed and modified as necessary.  The CRA will need to be addressed in sick leave policies for covered employers.  Consider whether a COVID-specific leave policy is warranted.  Additionally, if permitted by plan documents, employers should determine whether modifications to health plan eligibility because of reduced hours are warranted.

Q: Is The Small Business Administration Offering Any Assistance To Eligible Impact Employers?

A: The Small Business Administration is working with state governors to provide low-interest disaster recovery loans to small businesses and nonprofits that have been severely impacted by COVID-19.  These Economic Injury Disaster Loans offer up to $2 million in assistance for small business to help overcome the temporary loss of revenue they are experiencing.  These loans may be used to pay fixed debts, payroll, accounts payable, and other bills that cannot be paid because of the disaster’s impact.  The interest rate is 3.75% for small businesses without credit available elsewhere; businesses with credit available elsewhere are not eligible.  Get the latest information by visiting the SBA’s Guidance for Business and Employers to Respond to Coronavirus, by contacting the SBA’s national disaster relief helpline by calling 1-800-659-2955 or e-mailing  disastercustomerservice@sba.gov, or by contacting your local SBA office.

The SBA also provides export loans to help small businesses achieve sales through exports and can help these businesses respond to opportunities and challenges associated with trade, including COVID-19. The loans are available to small businesses that export directly overseas, or those that export indirectly by selling to a customer that then exports their products.  For more information, please see the SBA’s Guidance linked above.

Q: In The Case Of A Furlough, Shutdown, Layoff Or Closure, When Are Employees Entitled To Unemployment Insurance? (Added 3/23/20)

A:  Unemployment insurance benefits are controlled by state law. Generally speaking, regardless of the terminology used, employees will be eligible for UI if the employer lays them off, shuts down, or reduces their hours, whether on a temporary or permanent basis. If the government orders the business to shut down, employees will be entitled to UI.

Notably, state law will govern the interaction of paid leave (vacation, paid time off, and/or sick leave) and severance with UI benefits.

Q: What Guidance Has The Federal Government Provided On COVID-19? (Updated 3/29/20)

A: The federal government has provided the following guidance on COVID-19: