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 August 19, 2021 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? (Updated 11/12/20)

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 close contact through respiratory droplets from coughing, sneezing, and speaking. 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. The CDC also notes that transmission may be airborne.

Q: What Is “Close Contact” For Purposes Of Determining Exposure To COVID-19? (Updated 8/18/20)

A: The CDC defines the following as “close contact,” which may require an individual who is not fully-vaccinated to self-monitor and quarantine for up to 14 days following exposure:

  • Being within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated
  • Providing care at home to an infected person
  • Having direct physical contact with the infected person (hugged or kissed them)
  • Sharing eating or drinking utensils
  • They sneezed, coughed, or somehow got respiratory droplets on the other individual

The CDC also sets forth factors to consider when defining close contact, including: proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). The CDC further makes clear that the use of a face covering is not relevant in assessing close contact.

The CDC states that fully-vaccinated individuals do not need to quarantine following close contact, although they should undergo testing 3-5 days following such contact and wear a face-covering for 14 days, unless they undergo testing and receive a negative result. The CDC continues to recommend a 14-day quarantine period for close contacts by those who are not fully-vaccinated, but acknowledges that those individuals who remain asymptomatic may be released from quarantine after 7 days with a negative test taken at least 5 days following contact or, if permitted by local health authorities, after 10 days without a test.

Q: What Are The Symptoms Of Coronavirus? (Updated 11/12/20)

A: According to the CDC, the symptoms appear in the form of a fever or chills, dry cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, sore throat, loss of taste or smell, congestion or runny nose nausea or vomiting, and diarrhea. Symptoms appear 2-14 days after exposure. Individuals may be contagious up to 48 hours before becoming symptomatic or while remaining asymptomatic.

Q: What Are Complications Of The Coronavirus? (Updated 8/18/21)

A: According to the CDC, there are a number of long-term symptoms that can last for weeks or months after recovery from acute illness (i.e. “Long COVID”). These include fatigue, shortness of breath, cough, joint pain, chest pain, difficulty with thinking and concentration (“brain fog”), depression, muscle pain, headaches, intermittent fever, and heart palpitations.

More serious complications include inflammation of the heart muscle, lung function abnormalities, acute kidney injury, hair loss, rash, neurological issues (loss of smell/taste, brain fog, sleep issues), and psychiatric issues (depression, anxiety, mood changes), and death.

Note that Long COVID may constitute a disability under the Americans with Disabilities Act.

THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (Updated 3/17/21)

Note that the rights to paid leave under the Families First Coronavirus Response Act expired on December 31, 2020, but were extended in December 2020 on a voluntary basis by the Coronavirus Response and Relief Supplemental Appropriations Act through March 31, 2021, and further extended by the American Rescue Plan Act. Please see the ARPA Q&As below for further information about optional paid leave for COVID-19-related reasons through September 30, 2021.

Q: What Is The Families First Coronavirus Response Act (FFCRA)? (Updated 6/2/21)

A: Congress passed the Families First Coronavirus Response Act (FFCRA), specifically addressing the COVID-19 emergency.  Among other things, there were 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. The Department of Labor issued regulations to implement the FFCRA, and a Questions and Answers resource for additional guidance. The leave rights expired on December 31, 2020, although covered employers may choose to allow employees to use any unused leave, and receive the tax credit for doing so, through September 30, 2021. Please see the Q&As below on the American Relief Plan Act, below, for further information.

On August 3, 2020, a federal district court in New York vacated certain provisions of the FFCRA regulations: (1) the work-availability requirement, (2) the broad exemption for health care providers, (3) the employer approval of intermittent leave, and (4) the documentation requirement.  In response to the ruling, the DOL issued a revised Final Rule on September 11, 2020, in which it affirmed its original position on the work availability requirement and the employer approval of intermittent leave, but modified the documentation requirement and scaled back its definition of health care providers for purposes of the exemption.

One question some employers may have is whether they have to go back and retroactively grant/cover EPSL or EFMLA that now-eligible employees may have requested or used since April 1. In our opinion, the answer is no.

Violations of the EPSL provisions of the FFCRA are subject to the Fair Labor Standards Act remedies. The Portal to Portal Act, 29 USC 259, (which is an amendment to the FLSA), provides as follows:

[N]o employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, … if he pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the agency of the United States specified in subsection (b) of this section, or any administrative practice or enforcement policy of such agency with respect to the class of employers to which he belonged. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that after such act or omission, such administrative regulation, order, ruling, approval, interpretation, practice, or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect.

(Emphasis added). The language above provides a defense as to an employer’s actions that precede the court’s ruling and the issuance of the revised Final Rule.

The EFMLA provision of the FFCRA looks to the FMLA remedies. Notably, there is no similar language under the FMLA. However, reliance on the DOL’s regulations would likely constitute good faith for purposes of determining whether liquidated damages should apply. Also, the DOL would not pursue enforcement actions against any employer who relied upon those regulations prior to the court’s order or the revised Final Rule.

Q: What Is The Emergency Paid Sick Leave Act Under The FFCRA? (Updated 8/18/21)

A: The Emergency Paid Sick Leave (EPSL) 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 meeting certain criteria related to the viability of the business (but only as to leave for the COVID-19-related closures of a school or place of care or unavailability of a child care provider). It was amended by the Coronavirus Aid, Relief and Economic Security (CARES) Act to cover employees who were laid off after March 1, 2020 and then rehired, as long as they worked for the employer for 30 of the 60 days prior to the layoff.

The Emergency Paid Sick Leave Act provided 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

EPSL 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. In July 2021, the Secretary stated that accompanying a family member to obtain a COVID-19 vaccination and caring for a family member experiencing adverse effects from a vaccination constituted a substantially similar condition.

Except as permitted by their employer pursuant to the Coronavirus Response and Relief Supplemental Appropriations Act, 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 sunset on December 31, 2020, although was originally extended on a voluntary basis through March 31, 2021. Now, under the American Rescue Plan Act, employers may choose to grant an additional bank of 10 days EPSL through September 30, 2021 for expanded reasons. Please see the Q&As below on the American Rescue Plan Act, below, for further information.

EPSL 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. Notably, in order to be eligible to use FFCRA leave, the employer must have work for the employee that the employee cannot perform because of one of the qualifying reasons above.

Q: What Is The Emergency Family And Medical Leave Expansion Act Under The FFCRA? (Updated 6/2/21)

A: The FFCRA included the Emergency Family and Medical Leave Expansion Act (EFMLA).  This applied 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 EFMLA permits employees to take EFMLA 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 EFMLA 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 EFMLA 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. This expansion of FMLA sunset on December 31, 2020, although covered employers may choose to allow employees to use any unused leave, and receive the tax credit for doing so, originally through March 31, 2021. This has been further extended by the American Rescue Plan Act until September 30, 2021, on an expanded but still voluntary basis. Please see the Q&As below on the American Rescue Plan Act, below, for further information..

An employee is eligible for EFMLA 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. In addition, the Coronavirus Aid, Relief and Economic Security (CARES) Act amended this provision to include employees who were laid off after March 1, 2020 and then rehired, as long as they worked for the employer for 30 of the 60 days prior to the layoff.

This is not a new bank of FMLA leave for employees previously entitled to FMLA; the EFMLA 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 EFMLA leave for the COVID-19-related school/child care closure, it will reduce the amount of FMLA leave available for any other FMLA reason.

The regulations make clear that the employee is also limited to 12 weeks of EFMLA leave altogether during the effective period (April 1 – December 31, 2020), even if the 12 weeks span two of the employer’s (non-calendar year) 12-month FMLA periods. For example, if an employer’s twelve-month period begins on July 1, and the employee took seven weeks of expanded FMLA leave in May and June, 2020, the employee could only take up to five additional weeks of the new 12-week allotment of FMLA leave for the EFMLA child care purpose between July 1 and December 31, 2020 (now extended to September 30, 2021, at the option of the employer), even though the first seven weeks fell in the prior twelve-month period. Although we are waiting for clarification from the DOL, it is our belief that the extension of EFMLA under the American Rescue Plan Act grants a new bank of EFMLA leave, since the extension takes us into a new 12-month period.

Note that the EFMLA right applies 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 (or September 30, 2021, at the option of the employer), these employees have a full 12 weeks of EFMLA leave to use.

Q: What Are The Payroll Tax Credits Under The FFCRA? (Updated 3/17/21)

A: The Act provides a payroll tax credit equal to 100% of the required EPSL, 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 EFMLA, up to $200 per day or an annual aggregate of $10,000. Again, there are other limitations and conditions. The EFMLA credits have been expanded under the American Rescue Plan Act. Please see the American Rescue Plan Act Q&As below for further information.

In its COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Businesses FAQs, the IRS explains that the credit for the full amount of qualified paid leave wages, plus allocable qualified health plan expenses and the employer’s share of Medicare tax, is allowed against the employment taxes on all wages and compensation paid to all employees. If the amount of the credit exceeds the employer portion of these federal employment taxes, the excess is treated as an overpayment and refunded to the employer.

The IRS explains that employers will be able to retain the amount of qualified paid leave wages (plus health plan expenses and its Medicare contribution) against its federal employment taxes owed (income tax withholding, as well as both the employees’ and employer’s share of social security and Medicare taxes), rather than depositing the taxes with the IRS. If the taxes are not sufficient to cover the qualified paid leave wages, the employer can file a request for an advance payment from the IRS.

Employers must retain records and documentation supporting each employee’s leave, discussed below, to substantiate the claim for credits, in addition to Form 941 (Employer’s Quarterly Federal Tax Return) and (new) Form 7200 (Advance of Employer Credits Due to COVID-19), as well as “any other applicable filings made to the IRS requesting the credit.” The IRS also specifies that employers must retain records of employees’ work, telework, and qualified EPSL and EFMLA leave, for purposes of showing how the amount of qualified wages were paid. In addition, employer must also retain documentation showing how it determined the amount of qualified health plan expenses that it allocated to wages. These records must be retained for four years.

In its FAQs, the IRS details the process by which employers may receive the tax credit. Employers should review that resource and consult their accountant or tax attorney for further assistance on this process.

Q: What Is The Impact On Unemployment Insurance Benefits Under The FFCRA? (Updated 3/17/20)

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.

Notably, the CARES Act expanded the rights to UI benefits drastically, and these expanded rights were extended by the American Rescue Plan Act. See Q&As below and DOL guidance for further detail.

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 FFCRA? (Updated 6/2/21)

A: The Act took effect on April 1, 2020. The paid leave mandates expired on December 31, 2020, although they were originally extended on a voluntary basis through March 31, 2021. Under the American Rescue Plan Act, employers may choose to provide an additional bank of EPSL and EFMLA, for expanded reasons, through September 30, 2021. Please see the Q&As below on the American Rescue Plan Act, below, for further information.

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 FFCRA, above and beyond existing policies or state law mandates, prior to its effective date will not count towards the FFCRA’s paid leave obligations. Employers may not receive the tax credit reimbursement for COVID-19-related leave that it may have provided prior to April 1, 2020. Employees may not receive retroactive EPSL or EFMLA leave for leave taken prior to April 1, 2020.

Q: Which Employees Are Counted Towards The 50/500 Employees? (Updated 6/2/21)

A: “Employee” includes full-time, part-time, seasonal and temporary employees. The 500 employees are 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. The DOL states that the count does not include workers who have been laid off or furloughed and have not subsequently been reemployed – a point of some significance in light of the current economic crisis. The count is made at the time the employee’s FFCRA leave is to be taken.

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 EFMLA, existing Family and Medical Leave Act regulations set forth the applicable joint employer standard. These standards are set forth below in our affiliated employers Q&A.

Q: What Are The Notice Requirements for Employers? (Updated 6/2/21)

A: The Secretary of Labor has prepared a notice that was required to be posted through December 31, 2020 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.

Under the regular FMLA, the employer is required to comply with “specific notice” obligations, such as the notice of eligibility, the notice of rights and responsibilities, and written designation of FMLA leave. In its Discussion to its regulations, however, the DOL notes that it did not adopt these requirements for EFMLA. It states, however, that an employer that has established practices for providing such specific notices may prefer to apply their existing practices to EFMLA leave users.

Q: Are Employees Of Affiliated Companies Combined Towards The 500 Employees? (Updated 6/2/21)

A: The DOL states that a corporation is typically considered to be a single employer for purposes of the FFCRA. If one corporation has an ownership in another, they are still separate employers unless they are considered joint employers under the Fair Labor Standards Act.

If the entities are joint employers of particular employees, then all of their common employees must be counted by each employer towards the 500-employee threshold for purposes of both the EPSL and the EFMLA mandates. In addition, the employers may be jointly responsible for providing the required leave.

The DOL also acknowledges that two or more corporate entities are separate employers unless they are deemed integrated (or a single) employer under the Family and Medical Leave Act. In determining whether separate entities are an integrated employer, the DOL assesses four factors:

  • common management
  • interrelation between operations,
  • centralized control of labor relations, and
  • degree of common ownership or financial control.

No one factor is dispositive, but centralized control of labor relations/human resources functions is one of the more significant ones.  If the entities are found to be an integrated employer, then all employees of the entities that constitute the integrated employer are counted towards the 500-employee threshold for the FFCRA leave mandates.

Q: How Does The Emergency Paid Sick Leave Mandate Interact With Existing Leave Policies ? (Updated 4/2/20)

The EPSL mandate under the FFCRA is in addition to any existing leave, whether under state or local law or by employer policy. Employers cannot use existing leave to cover the EPSL. The DOL also states that any paid leave provided prior to the CRA’s effective date does not count towards the EPSL mandate.

In addition, if there is other paid leave that may be used for the COVID-19-related reasons for EPSL, the employee may choose whether to use the FFCRA 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 FFCRA 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 FFCRA EPSL 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 FFCRA EPSL 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 FFCRA portion of the leave.

The DOL notes that an employer can choose to pay more than they are entitled to under FFCRA – 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 FFCRA paid leave, even if they are eligible for STD.

Q: How Does The Expanded FMLA Leave Mandate Interact With Existing Leave Policies? (Updated 6/2/21)

A: The DOL will allow employers to substitute their existing paid leave programs for paid EFMLA leave and receive a tax credit toward the statutory 2/3 cap. (EPSL remains a new bank of leave). Under the provisions of the regular FMLA, employers may require employees to substitute available paid leave for unpaid FMLA leave, running concurrently.

Thus, under the original FFCRA mandate, after the initial two weeks of unpaid EFMLA (for which the employee can choose to use EPSL, other paid leave, or unpaid leave), employers could have required employees to use available paid leave (e.g. vacation, personal, sick (depending on whether it is permitted under any applicable statute) or PTO) to cover the remaining (paid portion of) EFMLA leave. The leave would be fully paid through the paid leave, and the employer could take the statutory tax credit against 2/3 of the amount up to $200 per day. Once the paid leave was exhausted, however, the remaining leave would be paid under the FFCRA at 2/3 the employee’s regular pay up to the $200 daily cap, and the per-employee maximum of $10,000.

Under the American Rescue Plan Act, however, which permits a voluntary extension of EFMLA leave until September 30, 2021, the first two weeks of EFMLA are no longer unpaid, and the per-employee maximum has been raised to $12,000.

Q. How Does The Small Business Exemption Work? (Updated 4/2/20)

A: The FFCRA provides an exemption from both the EPSL (only for the COVID-19-related closures of a school or place of care or unavailability of a child care provider) and EFMLA 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:

  • The provision of EPSL or EFMLA 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;
  • The absence of the employee or employees requesting EPSL or EFMLA 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
  • 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 EPSL or EFMLA leave, and these labor or services are needed for the small business to operate at a minimal capacity.

The DOL’s regulations add that, in order to elect this small business exemption, the employer must document that a determination has been made pursuant to the specified criteria. This documentation is not sent to the DOL, but simply retained in the employer’s files – presumably to be available for inspection by the DOL if questions later arise.

Of note, the regulations specifically state that, regardless of whether a small business chooses to exempt one or more of its employees, the employer is still required to post the mandatory FFCRA notice.

Q: Which Health Care Providers Are Exempted From The Leave Mandates? (Updated 9/14/20)

A: The FFCRA exempts certain “healthcare providers” from the EPSL and EFMLA leave mandates. The DOL’s original FFCRA regulations set forth 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. The DOL’s definition, however, was rejected by a federal court on August 3, 2020 as “vastly overbroad.”

On September 11, 2020, the DOL issued a revised definition of health care provider. This includes traditional health care providers under the FMLA: doctors, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, Christian Science Practitioners, and any health care provider accepted by the employer’s group health (or equivalent) plan. It also includes “other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” The DOL further explained the types of employees that this new definition includes as follows: (1) nurses, nurse assistants, medical technicians, and any other persons who directly provide the aforementioned medical care; (2) employees who directly assist or are supervised by the direct care providers; and (3) employees who do not provide direct health care services to a patient but are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment (as noted by the DOL, this last may require a case-by-case analysis).

Further clarifying its definition, the DOL set forth a non-exhaustive list of the types of health care employers for which these health care providers work: a doctor’s office, hospital, health care center, clinic, 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 permanent or temporary institution, facility, location, or site where medical services are provided. It also noted that an employee does not need to work at one of these facilities to be a health care provider, nor does working at one of these facilities render the employee a health care provider.

The Final Rule also set forth the following definitions:

  • Diagnostic services include taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.
  • Preventive services include screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.
  • Treatment services include performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.
  • Services that are integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care, include bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.

The Final Rule specifically states that “other” employees of health care services employers are not health care providers “even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.”

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

A: The FFCRA exempts certain “emergency responders” from the EPSL and EFMLA 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 FFCRA Leave Can Employers Require? (Updated 9/14/20)

A: In the current Questions and Answers resource and regulations, the DOL states that employers can and should obtain the following documentation:

  • The name of the employee requesting leave;
  • The date(s) for which leave is requested;
  • The reason for leave; and
  • A statement from the employee that he or she is unable to work because of the reason.

If the EPSL request is based on a quarantine, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine. A doctor’s note may not be required for this purpose. It may also not be required where the employee is seeking a diagnosis, although if the leave also qualifies for regular FMLA leave for the employee’s own serious health condition, then the usual FMLA certification requirements would apply. The employer may ask the employee to provide their symptoms and the scheduled date for a COVID-19 test or doctor’s appointment.

If the employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, the employer must also document:

  • The name of the child being cared for;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement from the employee that no other suitable person is available to care for the child.

In addition, if an employee who has been teleworking for a period of time suddenly requests childcare leave under the FFCRA, they will be entitled to the leave. The DOL states that the employer may ask the employee to note any changed circumstances giving rise to the new inability to work and consequent need for leave, but warns the employer to exercise caution in doing so.

The DOL further 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. In addition to the information set forth by the DOL above, the IRS also permits employers to obtain the following information:

  • In addition to the statement of the COVID-19 related reason the employee is requesting leave, the employee can be required to provide written support for such reason;
  • If leave is taken to care for a quarantined person who is not the employee, the employee must also provide that person’s name and relation to the employee.
  • In the case of leave needed to care for a child whose school or child care is closed or unavailable, if care is needed during daylight hours for a child older than fourteen, a statement that special circumstances exist requiring the employee to provide care.

The IRS also states the following information must be retained for the tax credit:

  • Documentation to show how the employer determined the amount of qualified sick and family leave wages paid to employees that are eligible for the credit, including records of work, telework and qualified sick leave and qualified family leave.
  • Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages.
  • Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the employer submitted to the IRS.
  • Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS (or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on Form 941)

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.”

If the employee requires leave beyond the two-week EPSL 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.

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

A: Employees are generally entitled to be restored to the same or an equivalent position upon returning from either EPSL or EFMLA leave, as employers are prohibited from disciplining or discriminating against employees for exercising their rights under the FFCRA.

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 FFCRA provides that if the employee takes EFMLA 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 4/2/20)

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, and the part-time employee has been employed for at least six months, the employee is entitled to up to the number of hours of EPSL equal to fourteen times the average number of hours that the employee was scheduled to work each calendar day over the immediately prior six-month period, including any hours for which the employee took leave of any type.

 

If this calculation cannot be made because the employee has not been employed for at least six months, the employee is entitled to up to the number of hours of EPSL equal to fourteen times the number of hours the employee and the employer agreed to at the time of hiring that the employee would work, on average, each calendar day. If there is no such agreement, the employee is entitled to up to the number of hours of EPSL equal to fourteen times the average number of hours per calendar day that the employee was scheduled to work over the entire period of employment, including hours for which the employee took leave of any type.

The DOL also states that employers may use twice the number of hours that the employee was scheduled to work per workweek, on average, over the six-month period prior to the leave.

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

A: The DOL states that, under the EFMLA 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 EPSL provisions of the FFCRA, EPSL 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 EPSL in the first week of expanded (unpaid) FMLA leave and 30 hours of EPSL 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 EFMLA 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? (Updated 5/7/20)

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.

The DOL has provided general guidance on how to calculate the regular rate at https://www.dol.gov/agencies/whd/fact-sheets/56a-regular-rate, and detailed guidance on how to calculate the rate for purposes of the FFCRA at question 82 of its Q&A at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

Q: What Does “Unable To Work Or Telework” Mean? (Updated 9/14/20)

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 FFCRA. Employees are entitled to leave if the employee is unable to perform work, even by teleworking, for one of the specified COVID-19-related reasons. Note that the DOL’s regulations provide that the employer must have work that the employee is unable to perform in order to be eligible for FFCRA leave.

The DOL further explains that paid leave under the FFCRA 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: What Is A “Quarantine Or Isolation Order” For Purposes Of Emergency Paid Sick Leave? (Updated 9/14/20)

A: In its regulations, the DOL expanded this definition beyond formal quarantine or isolation orders (i.e. directives under applicable state law by state or local health officials to specific individuals or groups of individuals based on possible or actual infection) to include “containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority.” (Emphasis added). The DOL also includes the situation when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine.

Notably, a quarantine or isolation order (whether of the employee or another individual) must result in the employee being unable to work or telework.

Note that the DOL’s regulations provide that the employer must have work that the employee is unable to perform in order for this leave to apply.

Q: When Can A Health Care Provider Advise An Employee Or Individual To Self-Quarantine For Purposes of Emergency Paid Sick Leave? (Upddated 4/3/20)

A: A health care provider (meaning a doctor, nurse-practitioner, or similar medical professional) can advise self-quarantine if the if the employee has COVID-19, may have COVID-19, or “is particularly vulnerable to COVID-19.” (Emphasis added). This may include older employees and those with underlying health care conditions, in order to avoid possible exposure.

The DOL further states that an employee who unilaterally chooses to self-quarantine without seeking a diagnosis or the advice of a health care provider is not entitled to E-PSL, even if the employee has COVID-19 symptoms. The DOL also warns that employees may not take E-PSL for illnesses unrelated to COVID-19.

Q: What Does “Seeking Diagnosis” Mean For Purposes of Emergency Paid Sick Leave? (Added 4/2/20)

A: This means the time that the employee is unable to work because they are taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.

Q: Who Is A “Child Care Provider” For Purposes Of FFCRA Leave? (Added 4/2/20)

A: This means a provider who receives compensation for providing child care services on a regular basis. The term includes a center-based child care provider, a group home child care provider, a family child care provider, or other provider of child care services for compensation that is licensed, regulated, or registered under State law. But it also includes family members or friends who regularly care for the child, without licensing or pay.

Q: What Is A “Place Of Care” For Purposes of FFCRA Leave? (Added 4/3/20)

A: The DOL defines “place of care” as a physical location in which care is provided for the child, but it does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before- and after-school programs, schools, homes, summer camps and enrichment programs, and respite care programs.

Q: What Are The Parameters Regarding FFCRA Leave Due To The Closure Of A School/Place Of Care Closure Or Unavailability Of A Child Care Provider? (Updated 9/14/20)

A: The right to take leave because of a school/child care closure or unavailability of a care provider is not automatic. The DOL emphasizes that an employee may take EPSL or EFMLA leave in such a situation “only when you need to, and actually are, caring for your child” and the employee is therefore unable to work/telework. The DOL goes on to state, “Generally, you do not need to take such leave if a co-parent, co-guardian, or your usual child care provider is available to provide the care your child needs.”

The DOL confirms that a school or place of care is “closed” when the physical location is closed, even if instruction is being provided online or through “distance learning.” Many schools have developed hybrid schedules, where the school is open each day but students alternate days between in-person and online learning, in order to minimize the number of students physically present at the school. The DOL states that employees may use FFCRA leave on those remote-learning days that their child is not permitted to attend in-person, because the school is effectively “closed” to the child on those days. Notably, this does not constitute “intermittent” leave under the FFCRA for which employer approval is required – in the commentary to its revised Final Rule, the DOL explicitly states that each “closed” day constitutes a new qualifying reason for FFCRA leave.

Another approach taken by many schools is to conduct in-person classes, but give parents the option to have their child participate remotely. The DOL states that, because the school is open for in-person attendance, FFCRA leave is not available. If, however, the child is s under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee will be able to take EPSL – but not EFMLA – for that reason.

Some schools have announced that the school year will begin with remote learning only, with a possible transition to in-person attendance at a later point. The DOL confirms that FFCRA leave is available while the school remains closed to in-person attendance.

The FFCRA does not apply, however, when a school is otherwise closed for reasons unrelated to COVID-19, such as summer vacation. In addition, if an employee who has been teleworking for a period of time suddenly requests childcare leave under the FFCRA, they will be entitled to the leave, although they may be asked to note any changed circumstances giving rise to the new inability to work and consequent need for leave.

This reason applies only to children 18 years or younger, unless the older child has a disability and cannot care for themselves due to that disability. It also only applies to the employee’s own child (although note that the definition of “son or daughter” under the FMLA is quite broad, including those for whom the employee stands “in loco parentis” – i.e. acts as a parent, even without a formal or legal relationship).

In terms of substantiating the need for this type of FFCRA leave, the employee must represent that “no other suitable person” will be caring for the child during the period of leave. “Suitable persons” include a co-parent, co-guardian, or a usual child care provider. In addition, if the employee is asserting an inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, they must provide a statement that special circumstances exist requiring the employee to provide care.

Q: How Does FFCRA Leave Apply To The Closure of Summer Camps Or Programs? (Added 7/13/20)

A: The DOL clarifies that places of care include summer camps and summer enrichment programs. To support a request for leave, the employee must provide an explanation of the reason for leave (i.e. closure of a summer place of care) and a statement that the employee is unable to work because of that reason, along with the name of the child, the name of the summer camp, summer enrichment camp, or other summer program, and a statement that no other suitable person is available to care for the child.

Unlike a regular school, attendance and even enrollment at summer camps and programs was prospective when the closures due to the pandemic began, and therefore, according to the DOL, the requirement to name a specific summer camp or program may be satisfied if the child, for example, applied to or was enrolled in the summer camp or program before it closed, or if the child attended the camp or program in prior summers and was eligible to attend again. There may be other circumstances that show an employee’s child’s enrollment or planned enrollment in a camp or program. A parent’s mere interest in such a camp or program, however, is not enough.

Q: Who Is An “Individual” Needing Care For Purposes Of FFCRA Leave? (Updated 4/3/20)

A: The DOL explains that an employee may take EPSL if they are unable to work/telework due to the need to care for an individual whose health care provider has advised self-quarantine if: (1) the individual is unable to care for themselves, (2) the individual depends on the employee for care, and (3) providing the care prevents the employee from working, including teleworking. The DOL emphasizes that the individual must “genuinely need” the employee’s care.

The DOL also defines who is an “individual” for whom care can be provided by the employee:

  • an immediate family member
  • someone regularly residing in the employee’s home
  • someone whose relationship creates an expectation that the employee would care for that person and the person depends on the employee for care during the quarantine (this can include a child who is not the employee’s child, as long as this criteria is met)

The DOL emphasizes that an employee may not take EPSL to care for someone with whom they have no relationship. And they may not take EPSL to care for someone who does not expect or depend on the employee’s care.

Q: Are Domestic Workers Entitled to FFCRA Leave? (Added 7/13/20)

A: Those who employ domestic workers (meaning that the workers are economically dependent upon the employer) are likely required to provide EPSL and EFMLA to those workers. This does not include those workers who are independent contractors (meaning that they are in business for themselves) or those employed by a third party service provider under a contract for services.

Q: Are Temporary Staffing Employees Entitled To FFCRA Leave? (Added 7/13/20)

A: An employee of a temporary staffing agency with more than 500 employees (and is thus not required to provide FFCRA leave) is assigned to a company with fewer than 500 employees. Whether that second company must provide EPSL and EFMLA leave depends on whether it is a joint employer of the staffing company employee. It will be deemed a joint employer if it directly or indirectly exercises significant control over the terms and conditions of the employee’s work (i.e. it exercises the power to hire or fire the employee, supervises and controls their schedule and conditions of employment, determines the rate and method of pay, and maintains their employment records). The staffing agency may not interfere with, or take any adverse actions against the employee based on, the leave provided by the joint employer.

Q: Can FFCRA Leave Be Taken Intermittently? (Updated 9/14/20)

A: According to the DOL, employees make take EPSL or EFMLA on an intermittent basis under certain circumstances. Although the DOL’s original regulation taking this position was struck down by a federal court on August 3, 2020, the DOL reiterated this position in its September 11, 2020 revised Final Rule.

Specifically as to teleworking, if the employee is unable to work their normal schedule of hours, the employee may take EPSL and/or EFMLA 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. Notably, however, the DOL also explicitly stated in its revised Final Rule that, “[t]he employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid attendance) basis because such leave would not be intermittent” under the FMLA. Rather, “[f]or the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.” The DOL distinguishes this from the scenario where the school is closed for some period and the employee nonetheless seeks leave on an intermittent basis.

Q: What Notice Do Employees Have To Provide Regarding Their Need For Leave? (Added 9/14/20)

A: The FFCRA provides that an employer can require employees to follow reasonable notice procedures after the first workday for which EPSL is taken (other than in the case of the closure of a school or place of care, or unavailability of a child care provider, for which notice must be given as soon as practicable). “Reasonableness” will be determined under the facts and circumstances of each particular case. Generally, it will be reasonable for an employer to require oral notice and sufficient information for an employer to determine whether the requested leave is covered by EPSL or EFMLA. In addition, it will be reasonable for notice to be given by the employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally. An employer may not require the notice to include documentation beyond what is allowed by in the regulations, as explained in our Verification Q&A.

If an employee fails to give proper notice, the employer should give them notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.

Q: Are Employees Entitled To FFCRA Leave During A Worksite Closure? (Updated 9/14/20)

A: The DOL states that employees are not entitled to EPSL or EFMLA 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). This is because of the work-availability requirement – i.e. the employee may only take FFCRA leave if the employer has work that the employee is unable to perform because of their qualifying need for leave. (This provision was struck down by a federal court on August 3, 2020; however, in its revised Final Rule, the DOL affirmed and further explained the work-availability requirement.)

Q: Are Employees Entitled To FFCRA Leave During A Furlough? (Updated 9/14/20)

A: The DOL’s regulations provide that an employee is not entitled to take EPSL or EFMLA leave while on furlough due to lack of work, even if the employer remains open. This is because of the work-availability requirement – i.e. the employee may only take FFCRA leave if the employer has work that the employee is unable to perform because of their qualifying need for leave. (This provision was struck down by a federal court on August 3, 2020; however, in its revised Final Rule, the DOL affirmed and further explained the work-availability requirement.)

Q: Can Employees Use FFCRA 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 EPSL or EFMLA 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 FFCRA Leave While Receiving Unemployment Insurance Benefits? (Added 3/27/20)

A: The DOL states that employees taking EPSL or EFMLA leave may not receive unemployment insurance benefits at the same time.

Q: Can Employees Use FFCRA Leave While Receiving Workers’ Compensation or Temporary Disability Benefits? (Added 4/3/20)

A: An employee who is receiving such benefits through an employer- or state-provided plan may not take EPSL or EFMLA leave if they are unable to work. They may be eligible for FFCRA leave if they are on light duty.

Q: Can Employees Use FFCRA Leave While On A Leave Of Absence? (Added 4/3/20)

A: According to the DOL, whether an employee on a leave of absence may take EPSL or EFMLA leave depends on whether the leave is voluntary or mandatory. If it is voluntary, the employee may end the leave and begin taking either EPSL or EFMLA leave if a qualifying reasons prevents them from being able to work/telework. If the leave is mandatory, however, the employee may not take FFCRA leave. The DOL notes that, under the latter circumstance, the employee may be eligible for unemployment insurance benefits.

Q: Do Employees Continue To Get Health Insurance While Taking FFCRA Leave? (Updated 4/2/20)

A: Employees will be entitled to maintain their existing health coverage while on EPSL or EFMLA 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 FFCRA leave at that point.

If an employer provides a new health plan or benefits or changes health benefits or plans while an employee is taking EPSL or EFMLA, the employee must be entitled to the new or changed plan/benefits just as if they were not on leave. Any other plan changes (e.g., in coverage, premiums, deductibles, etc.) which apply to all employees of the workforce would also apply to employees on FFCRA leave. Notice of any opportunity to change plans or benefits must also be given to an employee taking EPSL or EFMLA leave. If the employee requests the changed coverage, the employer must provide it.

The right to health care benefits stops if and when employment would have terminated if the employee were not on EPSL or EFMLA (e.g., if the employee fails to return from leave, or if the employer closes its business). Notice of eligibility to continue coverage under the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) must be provided.

Q: What Happens If The Employee Changes Employers? (Added 4/2/20)

A: For purposes of EFMLA leave, an employee will become eligible for this benefit once they meet the eligibility requirement of being employed for 30 days at a new employer, if that employer is covered by the FFCRA.

As to EPSL, an employee is limited to a total entitlement of 80 hours (or the two-week pro-rated equivalent for part-time employees) of EPSL, regardless of whether they change employers. So an employee who has taken 80 hours of EPSL and then changes employers is not entitled to any additional EPSL from the new employer. If they use some EPSL and then switch employers, they may use only the remaining amount of their 80-hour EPSL bank, assuming that the new employer is covered by the FFCRA

Q: What Are The Recordkeeping Requirements Under The FFCRA? (Added 4/2/20)

A: An employer must keep all documentation related to an employee’s EPSL or EFMLA requests for four years, regardless of whether the leave was granted or denied. In addition, if an employee provided oral statements to support their request for EPSL or EFMLA leave, the employer is required to document and maintain such information in its records for four years.

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

A: If an employee believes that they are entitled to but have been improperly denied EPSL or EFMLA leave under the FFCRA, 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 EFMLA violation, only if the employer has 50 or more employees).

Q: What Are The Penalties For Violating The FFCRA’s Paid Leave Mandates? (Updated 5/7/20)

A: Under the EPSL provision, if an employer fails to pay EPSL 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 EFMLA 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 FFCRA, however, provides an exemption from civil suit for employers with fewer than 50 employees.

The DOL had issued a temporary non-enforcement policy establishing a 30-day period, from March 18 through April 17, 2020, but that period has now concluded and the DOL is engaging in enforcement actions at this time.

THE CORONAVIRUS AID RELIEF AND ECONOMIC SECURITY ACT (Updated 3/17/21)

Q: What Is The Coronavirus Aid Relief And Economic Security Act (CARES)? (Added 3/17/21)

A: On March 27, 2020, President Trump signed the Coronavirus Aid Relief and Economic Security (CARES) Act, a $2 trillion bill that contains provisions provided 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. The monies allocated for the loan program for small businesses and nonprofits – the Paycheck Protection Program (PPP) – were quickly exhausted.

Thus, on April 24. 2020, President Trump signed the Paycheck Protection Program and Health Care Enhancement Act, which added funds to the PPP. The PPP was extended and expanded by the the Coronavirus Response and Relief Supplemental Appropriations Act, and further extended and expanded by the American Rescue Plan Act. See Q&As below on these two laws for further information.

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 EPSL and EFMLA 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? (Updated 3/17/21)

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. The Internal Revenue Service has issued FAQs on the employee retention credit. The American Rescue Plan Act has further extended this to December 31, 2021, with expanded eligibility and other changes. For more information, please see the American Rescue Plan Act Q&As below.

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 were unavailable if the employer availed itself of the SBA loan forgiveness program in Section 1106 of the CARES Act. They were also unavailable if the employer received tax credits for Paid Sick Leave or paid FMLA leave under the CRA. However, the American Rescue Plan Act will now allow employers to receive PPP forgiveness and the employee retention tax credit. Please see the American Rescue Plan Act Q&As below for more information.

Q: How Does CARES Impact Unemployment Insurance Benefits? (Updated 6/2/21)

A: The CARES Act offers federal assistance with unemployment compensation insurance (UI) benefits. We summarize the provisions below, but Ronald Adler of Laurdan Associates has provided further detail here.

The Department of Labor issued four separate documents providing guidance to states on the various unemployment compensation programs under the Coronavirus Aid, Relief, and Economic Security (CARES) Act: the Pandemic Unemployment Assistance Program, the Pandemic Emergency Unemployment Compensation Program, Federal Unemployment Pandemic Compensation, and the CARES Act Summary of Key Unemployment Insurance Provisions. Notably, these programs work in conjunction with each other. Our detailed summary of these guidance documents can be found here. These programs have been extended through September 6, 2021 by the American Rescue Plan Act. Please see the American Rescue Plan Act Q&As below for more information.

Under these programs, benefits will be made available to individuals who normally are ineligible, such as independent contractors and self-employed individuals (the Pandemic Unemployment Assistance Program).  Benefits may be extended for an additional 13 weeks for those who exhaust normal UI benefits (the Pandemic Emergency Unemployment Compensation Program). In addition, eligibility for 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;
  • The individual is self-employed and has experienced a significant diminution of services because of the COVID-19 public health emergency, even absent a suspension of services; or
  • The individual meets other criteria established by the DOL Secretary for unemployment assistance.

On top of these extended benefits, individuals who meet the criteria for eligibility were entitled to an additional $600 per week above the amount allowed for benefits under state law for up to four months (Federal Unemployment Pandemic Compensation). The FUPC was extended on a reduced basis, $300 per week, through September 6, 2021 by the American Rescue Plan Act, as described below in that section. 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: Is an Individual Eligible for Pandemic Unemployment Assistance If They Are Disqualified From Regular Unemployment Compensation Cecause of a Prior Quit or Termination? (Updated 8/5/20)Q

A: If an individual is disqualified from regular unemployment compensation because of a prior separation issue, but is currently unable or unavailable to work due to one of the COVID-19 reasons listed above, then the individual may still be eligible for Pandemic Unemployment Assistance.

Q: If an Individual Becomes Unemployed for Reasons Unrelated to COVID-19, and Now Is Unable to Find Work Because Businesses Have Closed or Are Not Hiring Due to COVID-19, Are They Eligible for Pandemic Unemployment Assistance? (Updated 8/5/20)

A: No. An individual is only eligible for PUA if the individual is otherwise able to work and available to work but is unemployed, partially unemployed, or unable or unavailable for work for a listed COVID-19 related reason under Section 2102(a)(3)(A)(ii)(I) of the CARES Act. Not being able to find a job because some businesses have closed and/or may not be hiring due to COVID-19 is not an identified reason.

Q: What Is The Loan Program For Small Businesses And Non-Profits Under CARES? (Updated 8/18/21)

A: Non-profits and small businesses are eligible for forgivable loans under the “Paycheck Protection Program.” As an incentive to keep employees on the payroll, this program provides small businesses and nonprofits with forgivable loans to fund payroll and other costs incurred during an applicable covered period consisting of either a 24 week period beginning on the PPP loan disbursement date, or if the borrower received its PPP loan before June 5, 2020, the borrower may elect to use an eight week covered period. Under the program, the federal government will essentially give an employer 2.5 times its monthly payroll, to use for paying wages, rent, mortgage interest and utilities. Originally, the covered period could not extend beyond December 31, 2020, but that has been extended under the December stimulus bill and the American Rescue Plan Act. Please see the American Rescue Plan Act Q&As below for more information.

Eligibility. Any business or non-profit is eligible if it has no more than 500 employees, however, in many industries, the size standard is much larger. Employers may look up the size standards here: https://www.sba.gov/document/support–table-size-standards. For this purpose, employees of the business include part-time and temporary agency employees. Special rules for hotels and restaurants and for franchises allow their size to be determined per physical location. Gig economy workers (sole proprietors, independent contractors and certain self-employed individuals) are also eligible. The CARES Act establishes other loan programs for employers too large for the Paycheck Protection Program, as explained in the next several Q&As.
Amount: Employers can receive 2.5 times average their monthly payroll cost, taking into account salaries, wages, commissions, tips, paid leave, severance pay, health insurance premiums, retirement benefits, and state and local payroll taxes. There is a cap of $10 million. In calculating the loan amount, employers cannot take into account cash compensation exceeding $100,000 per year per person, or sick leave or family leave for which a payroll tax credit is allowed under the CRA.

Use: Employers can use the money for payroll (including paid leave), continued health insurance coverage, mortgage interest, rent and utilities incurred during the applicable cover periods explained above. The loan cannot be used to pay wages at a rate exceeding $100,000 per year.

Forgiveness: The entire amount of the loan will be forgiven, provided it is used for costs incurred or payments made for payroll, mortgage interest, rent and utilities during a covered period beginning on the date of origination of the loan. The amount forgiven will be proportionally reduced if the borrower spends less than 60% of its loan proceeds on payroll costs. The amount forgiven will also be proportionally reduced if the employer reduces the average annual salary or hourly wage of any employee by more than 25 percent during the covered period. Loan forgiveness is also subject to reduction due to a borrower’s decrease in full-time equivalent employees (FTE) during the covered period as compared to certain reference periods.  In addition, there are certain other exemptions from loan forgiveness reductions.

The Act requires that employers apply for forgiveness, with documentation. The amount of the forgiven loan is not taxable income.

Application Process: Applications for the Paycheck Protection Program can be found on the Small Business Administration website. The PPP Loan Application deadline has been extended to March 31, 2021. The loans will be made through Small Business Administration approved banks and commercial lenders. The SBA’s on-line referral tool is here. To apply, an employer will not have to show that it cannot obtain other financing, which is normally an SBA loan requirement. It does have to certify “that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant,” that the loans will be used for the purposes described above, and that the applicant is not making a duplicative application or seeking a duplicative loan.

Effect on Employee Retention Credit: Originally, an employer that takes a Paycheck Protection Program loan was not eligible for the 50 percent payroll tax credit for employees subject to closure under Section 2301 of the CARES Act. The American Rescue Plan Act now permits employers to receive both. Please see the American Rescue Plan Act Q&As below for more information.

Q: What Is The Loan Program For Mid-Sized Businesses And Non-Profits Under CARES? (Added 7/13/20)

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 uncertainty of the current economic environment makes the loan necessary to maintain ongoing operations, 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.

THE PRESIDENTIAL MEMORANDA (Added 9/10/20)

What Is The Presidential Memorandum On Payroll Tax Withholdings? (Added 9/10/20)

A: The Presidential Memorandum on payroll tax withholding, which was issued on August 8, 2020, directs the Secretary of the Treasury to defer the withholding of the employee’s share of the 6.2 percent social security tax. The deferral shall be made available to employees earning less than $104,000 per year. The Secretary of the Treasury is directed to issue guidance to implement the Memorandum. The Memorandum also directs the Secretary of the Treasury to explore ways, including legislation, to make the deferral permanent. Absent such action, employees will still need to pay the deferred taxes when their 2020 income taxes returns are due.

The U.S. Department of the Treasury subsequently issued, on August 28, 2020, a Notice providing further guidance on the Presidential Memorandum. Here are the key points:

  • The Presidential Memorandum permits employers to defer the withholding and payment of FICA taxes, which consist of the 6.2 percent social security tax and the 1.45 percent Medicare tax.
  • The deferral is available only to employees making less than $4,000 per bi-weekly pay period.
  • The deferral is available only during the period September 1 to December 31, 2020.
  • The Notice is not entirely clear, but we read it as making the deferral optional. (The Notice defers the deadline for collecting and withholding taxes—it does not forbid employers from collecting and filing before the deadline.) The choice is up to the employer—employees do not get to decide.
  • The employer must pay the deferred payroll taxes between January 1 and April 30, 2020, or interest and penalties will be applied.
  • The obligation to pay the deferred taxes is on the employer, not the employee. To recover the cost, employers can impose an additional withholding on employees next year, subject to state laws concerning deductions from wages. The Notice does not say what happens if employees are terminated or laid off before the employer has deducted enough to satisfy the deferred tax liability allocable to that employee.

Employers may consider waiting for further developments, including the outcome of likely legal challenges, and the possibility that the Memorandum will be superseded by legislation, if the House of Representatives, Senate and White House can reach agreement on a new relief package.

What Is The Presidential Memorandum On Unemployment Insurance? (Added 9/10/20)

A: Under the Presidential Memorandum on unemployment benefits, participating states will administer an additional benefit of $400 per week, to people receiving at least $100 per week in unemployment benefits. This additional benefit would partially replace the $600 per week additional benefit that expired July 30, 2020. The additional benefit will last until December 6, 2020 or until the funding runs out. The federal government will supply 75 percent of the funds for the program, while the state must supply 25 percent. The federal share is funded by reallocating $44 billion from the CARES Act appropriation. The Memorandum was plainly intended to spur legislation, as it specifically provides that the program will “terminate upon enactment of legislation providing, due to the COVID-19 outbreak, supplemental Federal unemployment compensation, or similar compensation, for unemployed or underemployed individuals.”

The Memorandum on employment benefits requires no action on the part of employers. If it is not replaced by legislation, the additional benefit will be available in each state when it enters into a cost-sharing agreement with the Federal Emergency Management Administration and set up a program to process the benefits.

THE CORONAVIRUS RESPONSE AND RELIEF SUPPLEMENTAL APPROPRIATIONS ACT (Updated 3/17/21)

The Coronavirus Response and Relief Supplemental Appropriations Act (CRRSAA), included in the massive (5593 page) stimulus bill signed into law on December 27, 2020, offers a voluntary extension of the paid leave benefits under the Families First Coronavirus Response Act (FFCRA) and expands or extends relief benefits under the Coronavirus Aid Relief and Economic Security (CARES) Act. These have been further extended and expanded by the American Rescue Plan Act. For more information, please see the American Rescue Plan Act Q&As below.

Q: Does the CRRSAA Provide For New (Voluntary) Banks Of EPSL And EFMLA? (Updated 6/2/21)

A: These were not new banks of EPSL or EFMLA. The CRRSAA contains language that removes the prohibition on carry over of any unused EPSL from one year to the next, thereby enabling the employee to use any EPSL remaining at the end of 2020 through March 31, 2021. The existing FFCRA regulations already provided that an employee was only entitled to a maximum of twelve weeks of EFMLA, even if the period during which EFMLA can be used (April 1, 2020 through the original sunset date of December 31, 2020) spanned two FMLA twelve-month periods.

Note that the American Rescue Plan Act has granted new allotments of EPSL and EFMLA leave that the employer may choose to provide and receive the tax credit, through September 30, 2021. For more information, please see the American Rescue Plan Act Q&As below.

Q: What Happened To The Paid Leave Mandates Under The FFCRA? (Added 6/2/21)

A: The FFCRA paid leave mandates – emergency paid sick leave (EPSL) and expanded Family and Medical Leave Act (EFMLA) leave – expired on December 31, 2020. The CRRSAA gave FFCRA-covered employers the option to extend the EPSL and EFMLA benefit, and take the tax credit, through March 31, 2021, to the extent that the employee has not yet exhausted those benefits. Thus, if an employee has not used all two weeks of EPSL or twelve weeks of EFMLA as of December 31, 2020, the employer could have allowed the employee to use any remaining EPSL or EFMLA until March 31, 2021. Note that the American Rescue Plan Act has granted new allotments of EPSL and EFMLA leave that the employer may choose to provide and receive the tax credit, through September 30, 2021. For more information, please see the American Rescue Plan Act Q&As below.

Although the FFCRA leave benefits are no longer mandatory, employers may wish to consider extending these benefits if employees who have not yet exhausted those benefits become sick or are quarantined by order of a governmental agency or doctor, or are unable to work because of a COVID-related school/childcare closure, until September 30, 2021. These employees will necessarily have to remain out of the workplace during that time, and under the stimulus bill the employer is now afforded the ability to take a tax credit if they allow employees to use any remaining EPSL or EFMLA.

Additionally, many states and local jurisdictions have enacted COVID-19 leave mandates that continue to apply. Thus, employers should ensure that they are in compliance with these additional laws.

Q: How Does The CRRSAA Clarify The Tax Treatment Of PPP Loans? (Added 1/4/21)

A: The initial PPP provisions provided that forgiven loans did not constitute gross income, but the IRS took the position that borrowers could not deduct business expenses that were covered by a forgiven loan. The CRRSAA overrules the IRS’s position. Business expenses that were covered by forgiven PPP loans, including payroll, will be deductible under the usual rules. This applies to initial and second loans.

Q: Does The CRRSAA Provide For Second PPP Loans? (Added 1/4/21)

A: The CRRSAA appropriates funds for forgivable second loans, of up two million dollars, to previous PPP borrowers who:

  • Have 300 or fewer employees;
  • Had a 25% decline in gross receipts in any quarter of 2020 compared to the same quarter of 2019; and
  • Have used or will use the full amount of their first loan prior to disbursement of the second loan.

Q: How Does The CRRSAA Expand Eligibility For First PPP Loans? (Added 1/4/21)

A: The CRRSAA will make first loans of up to two million dollars available to additional entities including:

  • Hotels and restaurants with fewer than 300 employees per location;
  • Sole proprietors, independent contractors, and self-employed individuals;
  • Not for profits, including churches; and
  • Section 501(c)(6) business leagues, including chambers of commerce, visitor’s bureaus and destination marketing organizations, if they have 300 or fewer employees and do not receive more than 15 percent of their revenues from lobbying or spend more than one million dollars on lobbying.

Q: How Does The CRRSAA Expand Costs Eligible For Loan Forgiveness? (Added 1/4/21)

A: The CRRSAA expands the list of costs eligible for loan forgiveness to include:

  • Personal protective equipment and modification of facilities;
  • Operating costs including software, cloud computer services and accounting; and
  • Payments to essential suppliers.

To receive full loan forgiveness, 60 percent of the loan must be spent on payroll during an eight- or 24-week period.

Q: What Is The Employee Retention Credit Under The CRRSAA? (Added 6/2/21)

A: The CRRSAA expanded the employee retention credit available to employers who have experienced a decline in gross receipts.  The credit was increased from 50 to 70 percent and the cap on creditable wages is increased from 10,000 dollars per year to 10,000 dollars per quarter.  The amount of the decline in gross receipts necessary to receive the credit was liberalized from 50 percent to 20 percent.  The credit was initially scheduled to expire June 30, 2021.

Note that the American Rescue Plan Act further extends the employee retention tax credit until December 31, 2021. For more information, please see the American Rescue Plan Act Q&As below.

Q: What Are The Enhanced Unemployment Benefits Under the CRRSAA? (Added 3/17/21)

A: The CRRSAA includes an extension of two pandemic unemployment programs which were created under the CARES Act and were set to expire at year’s end. The Pandemic Emergency Unemployment Compensation (PEUC) program initially provided an additional 13 weeks of unemployment benefits to individuals who had exhausted their regular unemployment compensation benefits under state law. The Pandemic Unemployment Assistance (PUA) program extended unemployment benefits to workers who are traditionally ineligible for such benefits, such as independent contractors, part-time employees, and self-employed individuals, for up to 39 weeks. Benefits provided under these programs have now been extended to March 14, 2021, allowing workers to receive a maximum of 50 weeks of benefits. Eligible individuals may continue to receive payments through April 5, 2021, assuming they have not met the 50-week maximum.

In addition, the CRRSAA provides for a supplemental $300 weekly payment to individuals who are otherwise entitled to unemployment benefits under state or federal law (a prior $600 benefit expired in July 2020). Certain “mixed earners” (i.e., individuals who earn both W-2 wages and self-employed 1099 income) will be eligible for another $100 each week. These enhanced benefits were also available until March 14, 2021.

Note that the American Rescue Plan Act further extends these enhanced benefits until September 6, 2021. For more information, please see the American Rescue Plan Act Q&As below.

THE AMERICAN RESCUE PLAN ACT (Added 3/17/21)

Q: What Are the Employment-Related Provisions of the American Rescue Plan Act? (Added 3/17/21)

A: The American Rescue Plan Act of 2021 (ARPA), which was signed into law by President Biden on March 11, 2021, contains the following provisions of interest for employers: (1) an extension and expansion of the tax credit program for paid leave under FFCRA; (2) a governmental COBRA subsidy for employees subject to an involuntary termination or reduction in hours; (3) an extension of the pandemic-related enhanced unemployment insurance benefits; (4) an extension of the employee retention credit under CARES; (5) an extension and expansion of the PPP loan program and addition of certain grants for bars and restaurants.

Q: What Happened to FFCRA’s Paid Leave Provisions? (Added 3/17/21)

A: As noted above, the paid leave mandates under FFCRA expired on December 31, 2020, but the CRRSAA permitted covered employers to voluntarily allow its employees to use any remaining EPSL or EFMLA, and receive the corresponding tax credit, through March 31, 2021. ARPA both further extends and expands the tax credits that employers may opt to receive under FFCRA for voluntarily providing paid COVID-19-related EPSL and EFMLA through September 30, 2021.

Although the FFCRA leave benefits are no longer mandatory, employers may wish to consider extending these benefits. Many employees will necessarily have to remain out of the workplace for the reasons covered by FFCRA, and under ARPA the employer is afforded the ability to take a tax credit if they grant EPSL and/or EFMLA.

The Department of Labor has been directed to issue “regulations or other guidance” to implement these new provisions.

Q: Does ARPA Provide For New Banks of EPSL and EFMLA? (Added 3/17/21)

A: The FFCRA provided 10 days of EPSL that could be used through December 31, 2020, and the stimulus bill extended that period until March 31, 2021. ARPA provides that employers may grant a new 10-day bank of EPSL starting on April 1, 2021.

Although not specifically addressed in ARPA, we believe that employees are also entitled to a new bank of EFMLA beginning on April 12, to the extent that they do not otherwise receive FMLA leave. For employees of employers with 50 or more employees who are thereby covered by regular FMLA, they would be able to use their available FMLA for FFCRA purposes. As of April 1, 2021, because 12 months will have passed since the enactment of FFCRA, those employees will be in a new FMLA year, and should have received a new allotment of FMLA leave accordingly. We expect the DOL regulations will provide more specific guidance on this point.

Q: What Are The New Reasons For EPSL? (Added 8/18/21)

A: Under FFCRA, employees could take EPSL for six reasons: (1) self-isolation because of a COVID-19 diagnosis; (2) to obtain a medical diagnosis or care when experiencing COVID-19 symptoms; (3) because a health official or health care provider has recommended quarantine; (4) to care for a family member with COVID-19 or who is seeking diagnosis/care; (5) to care for a family member in quarantine; and (6) when a child’s school or childcare provider is unavailable because of COVID-19. ARPA adds new reasons: to seek or wait for a medical diagnosis or test after exposure to COVID-19, to get a test or diagnosis at the employer’s request, to get a COVID-19 vaccine, and to recover from adverse reactions to the vaccine.

President Biden subsequently announced that the paid leave benefit, with the concurrent tax credit, would also apply for employees to accompany a family member to obtain a vaccine, or to care for a family member experiencing adverse reactions to the vaccine.

Q: What Are The Expansions to EFMLA? (Added 3/17/21)

A: Originally, EFMLA was only available – and the tax credits claimed – if the employee was unable to work or telework due to the COVID-related unavailability of a child’s school or childcare. Under ARPA, the family leave payroll tax credits may now be claimed for all of the qualifying uses of EPSL listed above.

Moreover, FFCRA originally provided that the first two weeks of EFMLA were unpaid, with the remaining (up to) ten weeks paid at 2/3 the employee’s regular rate, up to $200 per day and a total maximum of $10,000. ARPA has deleted that unpaid two-week provision, meaning that the entire (up to) twelve weeks of EFMLA is paid. And, accordingly, the per-employee EFMLA tax credit limit has been increased to $12,000.

Q: What Is the New Non-Discrimination Provision for FFCRA Paid Leave? (Added 3/17/21)

A: Employers cannot claim the tax credits if the employer discriminates in favor of highly compensated employees or full-time employees, or discriminates on the basis of employment tenure with the employer, in providing EPSL or EFMLA.

Q: What Is the New COBRA Subsidy Under ARPA? (Added 6/2/21)

A: The ARPA provides a 100% subsidy for COBRA continuation coverage premiums from April 1, 2021 through September 30, 2021 for individuals who lost group health plan coverage due to an involuntary termination of employment or involuntary reduction in hours, and elect COBRA during the subsidy period. The subsidy period begins April 1, 2021 and ends September 30, 2021.  It is important to note that the subsidy period does not expand an individual’s COBRA coverage period.

Individuals who become eligible for COBRA during the subsidy period must be provided additional information about the subsidy with their COBRA election notice. The notice must describe the individual’s right to a subsidy, any conditions on that right, the forms necessary for establishing eligibility for the subsidy, and contact information for the plan administrator or other person who can provide additional information about the subsidy. Moreover, the notice must describe the individual’s obligation to notify the plan when the individual becomes eligible for an employer group health plan or Medicare.

In addition, the ARPA provides a second opportunity for COBRA election for employees who lost group health plan coverage because of an involuntary termination or reduction in hours after November 1, 2019, but did not elect COBRA or let their COBRA lapse. These individuals must receive a new COBRA election notice from the plan administrator, which must include a description of the availability to elect COBRA and contain the same information as the notice described above. These individuals will have 60 days after receipt of the notice to elect COBRA.

The subsidy period terminates earlier if the individual becomes eligible for certain other group health plan coverage or Medicare. Employers will receive a credit for the COBRA premium subsidy through a refundable payroll tax credit against the employer’s quarterly taxes.

Employers are required to ensure that their plan administrators provide certain notices to eligible employees. The DOL provided five model notices to assist employers and their plan administrators in complying with the new mandate. The model notices are:

  1. Model General Notice and COBRA Continuation Coverage Election Notice: The plan administrator should send this model notice to any individual who loses coverage due to an involuntary termination of employment or reduction in hours between April 1, 2021 and September 30, 2021. This model notice includes information about the COBRA subsidy and the standard election notice.
  2. Model COBRA Continuation Coverage Notice in Connection with Extended Election Periods: The plan administrator should send this model notice to any individual currently enrolled in COBRA continuation coverage due to an involuntary termination of employment or reduction in hours, and to individuals who lost health coverage due to an involuntary termination of employment or reduction in hours on or after October 1, 2019, but did not elect COBRA or let their COBRA lapse. This notice was supposed to have beem provided to eligible individuals before May 31, 2021, and individuals have 60 days after the notice is provided to elect COBRA.
  3. Model Alternative Notice of APRA Continuation Coverage Election Notice: This model notice should be sent by the plan administrator to any individuals who may qualify for the subsidy under state continuation coverage laws.
  4. Summary of the COBRA Premium Assistance Provisions under the American Rescue Plan Act of 2021: The plan administrator should include the “Summary of the COBRA Premium Assistance Provisions under the American Rescue Plan Act of 2021” when distributing the above-mentioned model notices. This document contains information on the ARPA and forms to elect or discontinue the premium assistance.
  5. Model Notice of Expiration of Period of Premium Assistance: The plan administrator should send this model notice to individuals 15 to 45 days before their premium assistance expires.

Q: What Are The Enhanced Unemployment Benefits Under ARPA? (Added 3/17/21)

A: The ARPA extends three federal unemployment insurance programs through September 6, 2021. First, the ARPA extends the federal supplemental unemployment insurance benefit of $300 per week. Second, the ARPA extends Pandemic Unemployment Assistance, which provides benefits to individuals who are self-employed, seeking part-time employment, or who otherwise do not qualify for regular state unemployment benefits. Finally, the ARPA extends Pandemic Emergency Unemployment Compensation, which provides benefits to individuals who have exhausted their state unemployment insurance benefits. Further information about these enhanced benefits as originally implemented by the CARES Act may be found in the CARES Act Q&A above.

Q: What Happened to The Employee Retention Tax Credit Under ARPA? (Added 3/17/21)

A: As discussed in the The Coronavirus Response and Relief Supplemental Appropriations Act (CRRSAA) Q&As above, the stimulus bill passed by Congress on December 27, 2020 expanded the employee retention tax credit available to employers who have experienced a decline in gross receipts under the Coronavirus Aid Relief and Economic Security (CARES) Act. Previously, the CARES Act prohibited an employer from claiming the employee retention tax credit if it received a PPP loan. Under ARPA, employers are now permitted to receive a PPP loan and the employee retention tax credit retroactive to the effective date of the CARES Act (for wages paid after March 12, 2020). However, the credit may not be claimed for wages paid with the proceeds of a PPP loan that have been forgiven. For example, an employer who had PPP forgiveness from April 2020 to September 2020 may claim the credit for September 2020 to December 2020, plus the first two quarters of 2021 (assuming that the employer qualifies either through a significant decline in gross receipts or full/partial suspension of operation of trade or business). The ARPA also extends the employee retention tax credit through December 31, 2021.

Additionally, the ARPA expands eligibility for the credit to new startups that were established by February 15, 2020 and that have annual gross receipts of $1 million or less, and to severely distressed employers whose gross receipts are less than 10% of what they were in the same calendar quarter for 2019. The credit is capped at $50,000 per calendar quarter for startups. Further information about the employee retention tax credit may be found in the CARES Act Q&As above.

Q: What Happened to the PPP Under ARPA? (Added 6/2/21)

A: The ARPA allocates an additional $7.25 billion for the Paycheck Protection Program (PPP), which provides loans to small businesses to help keep their workforce employed during the COVID-19 pandemic. The ARPA also expands eligibility for the PPP to additional nonprofits and certain digital news services. The PPP’s application period, was extended through May 31, 2021. Further information about the PPP may be found in the CARES Act Q&A above.

Q: What Is the Restaurant Grant Program Under ARPA? (Added 3/17/21)

A: The ARPA allocates $28.6 billion for a new grant program for certain restaurants that experienced lower gross receipts in 2020 than those in 2019. Applicants will be eligible to receive a grant of up to $10 million. Eligible entities include restaurants, food stands, food trucks, food carts, caterers, saloons, inns, taverns, bars, lounges, brewpubs, tasting rooms, taprooms, and licensed facilities or premises of beverage alcohol producers where the public may taste, sample, or purchase products, or other similar places of business in which the public or patrons assemble for the primary purpose of being served food or drink.

Applicants do not qualify for the grant if they (1) own or operate more than 20 locations, regardless of whether those locations do business under the same or multiple names as of March 13, 2020, or (2) are publicly traded.

An eligible entity applying for a grant is required to make a good faith certification that the uncertainty of current economic conditions makes necessary the grant request to support ongoing operations of the eligible entity.

An eligible entity that receives a grant may use the grant funds for expenses incurred as a direct result of, or during, the COVID-19 pandemic, including payroll costs, mortgage or rent payments, utilities, maintenance expenses, supplies, food and beverage expenses, certain supplier costs, operational expenses, and paid sick leave. Grant funds must be spent by December 31, 2021 or returned.

WORKPLACE SAFETY AND HEALTH

Q: What General Safety And Health Obligations Do Employers Have With Regard To Their Workplace? (Updated 8/18/21)

A: The Occupational Safety and Health Administration oversees workplace safety and health, and establishes relevant workplace standards. There is no current specific standard for respiratory diseases like COVID-19 in the general workplace. On January 29, 2021, OSHA issued non-binding guidance for workplaces. This guidance was updated and significantly revised on June 10, 2021– taking into account the impact of vaccinations. At the same time, OSHA issued its long-awaited Emergency Temporary Standard (ETS), which is applicable only to healthcare. OSHA then further updated its general workplace guidance on August 13, 2021. Both the updated guidance and the ETS are discussed in Q&As below.

Moreover, under the existing provisions of the Occupational Safety and Health Act, 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 in accordance with the updated OSHA COVID-19 guidance.

Some states have implemented workplace safety standards specific to the COVID-19 pandemic. Employers should check to see if such state-specific standards are applicable to their facilities.

Q: What Updated Guidance Has the Biden OSHA Provided For Workers? (Added 8/18/21)

A: On January 29, 2021, the Occupational Safety and Health Administration (OSHA) provided guidance for employers and employees on COVID-19 in the workplace, which was updated on June 10, 2021 and again on August 13, 2021.

OSHA emphasizes that vaccination is key to workplace protections. It also asserts that workers should follow workplace precautions and policies.

For vaccinated individuals, OSHA recommends that they wear masks in public indoor settings if they are in an area of substantial or high COVID-19 transmission rates, as identified by the CDC. Such individuals are not otherwise required to wear masks or observe other preventive measures (except as directed by local/state requirement or by their employer).

OSHA continues to reiterate that workers who are not fully-vaccinated should maintain a distance of at least six feet from others (if possible), wash hands, cover their nose and mouth with a tissue or elbow when sneezing or coughing, and use face coverings. OSHA emphasizes that face coverings do not eliminate the need for other measures, such as distancing or handwashing, and should still be worn even after vaccination, given the uncertainties as to how vaccination affects transmissibility. Workers should also get tested regularly and ask their employers about other steps that have been taken in their workplace.

Q: What Updated Guidance Has the Biden OSHA Provided for Employers? (Updated 8/18/21)

OSHA’s most recent guidance contains a new and explicit emphasis that “vaccination is the most effective way to protect against severe illness or death from COVID-19.” And OSHA pointedly suggests “that employers consider adopting policies that require employees to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

This is the strongest statement yet from the federal government in support of private employer vaccination mandates, following prior guidance from the Equal Employment Opportunity Commission that such mandates do not violate federal anti-discrimination laws (as discussed in our May 28, 2021 E-lert), as well as an opinion from the Department of Justice asserting that the vaccines’ Emergency Use Authorization status does not preclude such mandates (as discussed in our July 27, 2021 E-lert).

In addition, the prior iteration of the workplace guidance provided that protective measures were not required for fully-vaccinated individuals. However, given a change in CDC guidance for fully-vaccinated individuals, OSHA revised its guidance to align with the CDC, and now recommends that fully-vaccinated individuals in areas of substantial or high transmission should mask in public indoor settings.

OSHA sets forth a number of steps that employers should consider, preferably in consultation with employees and/or their representatives (such as a union):

  • Grant paid time off for vaccine-related reasons. This includes for the employee to get a vaccine and to recover from any adverse effects, as well as to accompany family members to get a vaccine and to care for them if they have adverse effects. OSHA notes that employers with fewer than 500 employee are eligible for tax credits to reimburse the cost of such leave through September 30, 2021, as discussed in the ARPA section above.
  • Instruct infected workers, unvaccinated workers in close contact with a COVID-19-positive individual, and those with COVID-19 symptoms to stay home. Workers should comply with the isolation and return to work requirements discussed elsewhere in our Q&A resource.
  • Implement physical distancing (at least 6 feet) for unvaccinated/at-risk workers in communal work areas. OSHA also suggests minimizing contact through telework, flexible work hours, and virtual technologies, among other things. Where distancing is not possible, employers should consider transparent shields and other solid barriers. In constructing barriers, employers should take into account employee posture (sitting or standing), employee height, directional airflow, and fire safety.
  • Provide face coverings or surgical masks at no cost, unless respirators or other PPE is required. Reasonable accommodations to a masking requirement may need to be provided to workers for disability or religious needs, and clear masks may be necessary to enable hearing-impaired workers to lip read. OSHA further notes that masking is not required outdoors, unless mandated by state or local requirements. In addition, OSHA emphasizes that employees should be permitted to use masks if they so wish, regardless of vaccination status.
  • Educate and train workers on the employer’s COVID-19 policies and procedures, using accessible formats and in the language spoken by the workers. Managers should be trained on how to implement the policies and procedures. Worker training should include basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, and hand hygiene. It should also include policies and procedures implemented to protect them. Employers should also ensure that workers understand their right to a safe workplace, whom to contact with workplace safety concerns, and their right to be free from retaliation for raising such concerns.
  • Consider requiring that unvaccinated customers, visitors, and guests wear face coverings if there are unvaccinated/at-risk employees in the workplace. In areas of substantial/high transmission, consider requiring all such individuals wear face coverings in indoor public settings. OSHA suggests posting a notice.
  • Maintain ventilation systems. OSHA notes that some measures to improve ventilation are discussed in CDC’s Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace. Key measures include proper HVAC operation, complying with inspection/maintenance schedules, maximizing outdoor air supplies, installing air filters meeting certain efficiency standards, and considering the use of HEPA filters.
  • Perform routine cleaning and disinfection, with enhanced protocols in compliance with CDC recommendations if someone infected with or exhibiting COVID-19 symptoms has been present within the past 24 hours.
  • Record and report COVID-19 infections and deaths that are work-related, as required by OSHA (and discussed elsewhere in this Q&A resource).
  • Implement protections from retaliation and set up an anonymous process to report COVID-19 health hazards.
  • Comply with other applicable OSHA Standards, such as PPE, respiratory protections, sanitation, protection from bloodborne pathogens, and access to medical and exposure records. Healthcare employers must also comply with the new Emergency Temporary Standard.

Q: What Guidance Has the Biden OSHA Provided for Higher-Risk Workplaces? (Added 8/18/21)

In its latest Guidance, OSHA also offers measures specifically for higher-risk workplaces with a mix of vaccinated and unvaccinated workers. As noted above, the guidance does not apply to fully-vaccinated workplaces. Factors in determining whether a mixed workplace is higher risk include close contact between workers, duration of contact, types of contact, and other “distinctive factors” (such as employer-provided shared transportation, frequent contact with unvaccinated individuals in areas with high community transmission, and communal worker housing). Examples of these types of higher-risk workplaces include: manufacturing; meat, poultry and seafood processing; and high-volume retail and grocery.

  • For all higher-risk workplaces:
    • Stagger break times, or provide temporary break areas and restrooms to minimize interaction.
    • Stagger arrival and departure times.
    • Provide visual cues (e.g. floor markers) for social distancing.
    • Improve ventilation in the workplace.
  • For workplaces with assembly or processing lines:
  • Ensure adequate ventilation in the facility, or if feasible, move work outdoors.
  • Space such workers out, ideally at least 6 feet apart, and ensure that such workers are not working directly across from one another.
  • If barriers are used where physical distancing cannot be maintained, they should be made of a solid, impermeable material, like plastic or acrylic, that can be easily cleaned or replaced. Barriers should block face-to-face pathways and should not flap or otherwise move out of position when they are being used. Barriers do not replace the need for face coverings or physical distancing.
  • For retail workplaces:
    • Suggest or require masks for unvaccinated (or where vaccination status is unknown) customers and other visitors.
    • Ensure social distancing or the use of barriers (with pass-through openings at the bottom).
    • Move payment readers further away from the worker.
    • Shift primary stocking activities of unvaccinated/at-risk workers to off-peak or after hours, when possible.
  • For workers on employer-provided shared transportation, employers should notify them of the risk of transmission, limit the numbers of riders, and ensure that unvaccinated/at-risk employees are wearing face coverings.

Q: What Is OSHA’s COVID-19 Emergency Temporary Standard for Healthcare? (Added 7/19/21)

In conjunction with updating its COVID-19 guidance for employers generally, as discussed above, on June 10, 2021, the federal Occupational Safety and Health Administration (OSHA) issued a long-awaited COVID-19 Emergency Temporary Standard (ETS) – but limited its coverage only to employers providing healthcare services or healthcare support services. The ETS imposes significant responsibilities and obligations on those employers in the context of the COVID-19 pandemic – much of which healthcare entities are already doing. But there are a few surprises as well.

Along with the ETS, OSHA also offers a fact sheet (available in Spanish), a helpful flow-chart to determine if the entity is subject to the ETS, and detailed FAQs. In addition, OSHA provided a fact sheet on the new Mini Respiratory Protection Program that is part of the ETS.

The extensive and targeted scope of the ETS is beyond the general information intended to be included in this Q&A resource. For a detailed discussion of the ETS, we refer you to our June 15, 2021 E-lert. In addition, we summarize the resources that OSHA has provided to healthcare employers to assist with compliance in our June 23, 2021 blog post.

Q: What Measures Should Employers Take With Regard To Workplace Hygiene And Disinfection? (Updated 4/9/20)

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.), using the appropriate products that meet EPA’s criteria for use against SARS-CoV-2.
  • Review building ventilation to increase ventilation rates and increase the amount of outdoor air.
  • Place OSHA’s new posters on “Hand Hygiene”and “Help Stop the Spread” at the entrance to the workplace and in other workplace areas where they are likely to be seen.

Q: What Is The Difference Between Face Coverings, Surgical Masks And Respirators? (Updated 11/12/20)

A: There is a distinction between cloth face coverings, surgical masks, and respirators, as noted by the Occupational Safety and Health Administration in its FAQs on the topic.

According to OSHA, cloth face coverings are used to contain potentially infectious respiratory droplets (from talking, sneezing and coughing), and (as of November 10, 2020) the CDC has stated that they also provide some protection from infection. They are not considered PPE and are not an adequate substitute for PPE (where PPE is required). They may be homemade or commercially manufactured, and may be disposable or reusable (after washing/cleaning).

Surgical masks are commercially manufactured and disposable after a single use. They are typically FDA-cleared as a medical device. They can be used to contain respiratory droplets to prevent the spread of COVID-19. They can protect workers against potentially infectious splashes and sprays, and may reduce exposure to airborne transmission of infectious agents. If employers determine that they should be used to protect against splashes and sprays, they are considered PPE. OSHA notes, however, that the use of surgical masks may be a means of source control to prevent the spread of COVID-19 in the context of an employer’s responsibility to provide a safe workplace under OSHA’s General Duty Clause. If the masks are used solely for this preventive purpose, and not the protective reason, they are not PPE.

Respirators are certified by the National Institute of Occupational Safety and Health to prevent the inhalation of airborne transmissible infectious agents (and other small particles). These include the notoriously elusive N95 masks (which OSHA and the CDC have requested to be reserved for the use of healthcare providers). If respirators are required for a particular job, they are subject to OSHA’s respiratory protection standard, which requires a respiratory protection program including proper training, fit testing, availability of appropriate medical evaluations and monitoring, cleaning, and oversight by a knowledgeable staff member. Because of the COVID-19 pandemic, OSHA is temporarily exercising its enforcement discretion with regard to many of the standard’s requirements, including fit testing, extended use or reuse, recommended shelf life, foreign supplies, and decontamination.

Q: Must Employers Permit Employees To Wear Gloves, Masks, Or Other Personal Protective Equipment? (Updated 7/19/21)

A: The CDC and OSHA are recommending the use of cloth face coverings in the workplace for workers who are not fully vaccinated. With certain exceptions (e.g. healthcare), the CDC does not currently recommend use of medical masks, respirators and gloves (personal protective equipment or “PPE”). Employers are not required to allow the use of PPE unless the employee has a disability and his or her doctor has identified the use of a medical mask, respirator, 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 PPE would be a reasonable accommodation.

Under OSHA’s respiratory protection standard, 29 C.F.R. § 1910.134, a respirator (which includes N-95 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? (Updated 4/9/20)

A: If employees are permitted to wear medical masks, respirators, or gloves (personal protective equipment or “PPE”) at 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 or cloth 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: May The Employer Require Employees To Wear A Mask Or Gloves? (Updated 7/19/21)

A: The CDC and OSHA are recommending, but not mandating, that employers encourage workers who are not fully vaccinated to wear face coverings at work. Many state and local jurisdictions have mandated the use of face coverings in certain businesses, like retail and food service. Some orders even extend to other private workplaces. But in many jurisdictions, no such mandates exist or they have been lifted. An additional complication is the CDC’s recent guidance that fully-vaccinated individuals no longer need to mask, whether indoors or out, subject to state or local requirements.

Consequently, for these employers not subject to a mask mandate, the use of face coverings is left to their discretion, and they can certainly require the use of masks in the workplace for their workers – even those who are fully vaccinated. This use is a scientifically-supported best practice to reduce or prevent the spread of infection for unvaccinated or partially vaccinated individuals, and even fully vaccinated individuals with immune system concerns or in light of COVID-19 variants – and arguably may even be considered part of an employer’s obligation to provide a safe workplace under OSHA’s general duty clause – but there are different levels of use that may be required:

  • All employees may be required to wear face coverings or masks at all times within the office, regardless of vaccination status.
  • All employees, regardless of vaccination status, may be required to wear face coverings or masks only if they will be within 6 feet of any other person while in the workplace, whether in a communal area or private office.
  • All employees, regardless of vaccination status, may be required to wear face coverings/masks if they are walking through or working in communal areas of the workplace (entrances, hallways, conference rooms, break rooms, rest rooms, etc.) or are within 6 feet of anyone else. If they are alone in an enclosed private office, they could remove the face coverings/masks to work.
  • Fully-vaccinated individuals need not mask at all, while unvaccinated or partially-vaccinated individuals may be required to wear face coverings/masks in accordance with one of the options above.
  • None of the employees are required to wear masks/face coverings in the workplace – as long as permitted by state/local requirements and recognizing the possibility that permitting unvaccinated employees to go maskless could potentially be found to be a violation of OSHA’s General Duty requirement.

There may be situations in which employers would need to make exceptions to any face covering requirement. One is if the face covering poses a hazard to the employee during the performance of a particular task – such as potentially being caught in machinery, trapping dangerous chemicals, or interfering with the use of required PPE. Another is if the employee has a disability that prevents them from wearing a face covering – in which case the employer must engage in the interactive process under the Americans with Disabilities Act to determine if a reasonable accommodation can be made. Similarly, an employee may make a request not to wear a face covering for religious reasons, which would trigger the interactive process under Title VII. Whether or not an employer would have to excuse an employee from wearing a mask as a reasonable accommodation would depend on the circumstances and the outcome of the interactive process.

If the face coverings/masks are being used as source control and not PPE, employers may wish to consider providing the face coverings/masks, but do not have to, except in states where employers are required to reimburse all business expenses (like California and Illinois, among others). But it may be wise to do so to reinforce the employer’s commitment to a safe workplace, to encourage the use of face coverings/masks, and for purposes of employee morale. If the masks are being required as PPE, however, employers must provide and/or pay for them. (Remember that face covering are never PPE).

If employers choose to require the use of face coverings in the workplace, they should instruct employees on how to wear the face coverings/masks (i.e. over the nose and mouth). Unfortunately, many people do not seem to understand how the face covering should be worn. The instruction doesn’t have to be a formal, in-person training. Written directions or, better yet, a graphic is sufficient. (A formal “training” is only required for respirators such as N95 masks, which are not at issue here.) The CDC has provided a poster on this topic, which may be displayed throughout the workplace: https://www.cdc.gov/coronavirus/2019-ncov/downloads/cloth-face-covering.pdf.

The CDC has issued additional guidance on the use of face masks: Types of Masks guidance and Your Guide to Masks. The CDC continues to emphasize that masks should fit snugly. Both cloth masks and disposable masks should have multiple layers and nose wires, and the cloth masks should be tightly woven. The CDC also offers the following recommendations to improve fit and protection:

  • Wear two masks (disposable mask underneath ANDcloth mask on top)
  • A cloth mask can be combined with a fitter or brace
  • Knot and tuck ear loops of a 3-ply mask where they join the edge of the mask

As to other types of face coverings, the CDC cautions that KN95 masks should not be layered. It also warns of counterfeit KN95 masks. Neck gaiters should have two layers or be doubled. And the CDC states that face shields are not recommended, as their effectiveness is still unknown. Scarves, balaclavas and ski masks are not a substitute for masks, and should be worn over a mask.

In light of this guidance, employers who choose to require some or all employees to mask may wish to consider recommending those employees to double-mask in order to further reduce the risk of spread. If so, they should consider providing disposable masks to employees, who may not otherwise be able to find or afford them, to use with their own cloth masks (unless the employer is also already providing cloth masks). Of course, employers must be receptive to concerns about difficulty breathing through a double mask, and may need to provide reasonable accommodations for disabled employees who may not be able to tolerate a double mask.

Q: Must Employees Be Paid for the Time Spent Donning or Doffing PPE? (Added 6/2/21)

A: If an employer determines that PPE or other safety gear (beyond face coverings and gloves) is required for employees to safely and effectively perform their duties, then the time spent donning PPE prior to beginning their primary duties and doffing PPE after the completion of such duties would be compensable.

Q: What If Employees or Workplace Visitors Refuse to Mask? (Updated 6/2/21)

A: Companies that choose to require employees and patrons to wear masks should prepare to deal with challenges and be thoughtful about how to address “robust” ones, especially by clients or customers. The CDC has offered suggested  strategies to try to avoid potential incidences of violence that may arise from masking opponents. Among them, make sure the masking requirement is clearly communicated via signage and online, like on websites and FaceBook pages. Retail outlets should continue curbside pickup, personal shopping services, and home delivery to provide alternatives to those who view masks as an infringement on their autonomy. Training employees to recognize threats and defuse tense situations is another suggested measure.

Employees and members of management present different challenges, with those demanding the continued use of masks being as vocal as those who chafe at these continued restrictions. Be prepared to clearly communicate expectations and, before doing so, get buy in from those at the top. The “safest” choice is to continue to follow the CDC’s and Occupational Safety and Health Administration’s (OSHA) recommendations – masks and social distancing for the unvaccinated and partially-vaccinated, plexiglass barriers, etc. Moreover, the failure to do so could arguably leave a business open to a claim for failure to comply with the Occupational Safety and Health Act’s General Duty Clause to provide a safe workplace environment. Employees who refuse to comply with mask mandates may be disciplined or discharged.

For companies that do not require masking, disciplinary action against those who protest the policy as unsafe is risky, as claims of retaliation under OSHA for insisting on workplace safety may be viable. It is advisable to consult with legal counsel before taking action with such employees.

Q: Can Employers Require Employees To Get The COVID-19 Vaccine? (Added 12/3/20)

A: Generally, yes, although employers may need to make reasonable accommodations for employees who cannot take the vaccine because of a disability, and for employees who have a need for an exemption because of religious reasons. Employer-required vaccinations may also be subject to state law restrictions.

Q: How Else Can Employers Protect Their Employees Still Working On Site? (Updated 6/2/21)

A: Employers should encourage “social distancing” for their unvaccinated and partially-vaccinated employees.  Those employees should keep a reasonable distance (at least six feet) from other employees (including fully-vaccinated 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.
  • Increasing physical space between employees and customers.
  • Downsizing operations.
  • Delivering services remotely.
  • Delivering products through curbside pickup or delivery.

The CDC has also issued guidance on cleaning and disinfecting, including at the workplace. Of note, the CDC has also provided additional considerations specific to employers.  In particular, employers should:

  • Educate workers performing cleaning, laundry, and trash pick-up to recognize the symptoms of COVID-19.
  • Provide instructions on what to do if employees develop symptoms within 14 days after their last possible exposure to the virus.
  • Develop policies for worker protection and provide training to all cleaning staff on site prior to providing cleaning tasks. Such training should include when to use personal protective equipment (PPE), what PPE is necessary, how to properly put on, use, and take off PPE, and how to properly dispose of PPE.
  • Ensure workers are trained on the hazards of cleaning chemicals used in the workplace in accordance with OSHA’s Hazard Communication standard.
  • Comply with the Occupational Safety and Health Administration’s (OSHA)standards on Bloodborne Pathogens, including proper disposal of regulated waste, and PPE.

Q: What Are Common COVID-19 Citations By OSHA? (Added 12/3/20)

A: According to OSHA guidance, the most frequently-cited standards include Respiratory Protection, Recording and Reporting Occupational Injuries and Illnesses, Personal Protective Equipment and the General Duty Clause. In its guidance, OSHA provides descriptions of the various violations, as well as links to relevant resources and other information. With regard to the General Duty Clause, which is applicable to all employers, OSHA noted that “employers must protect employees from COVID-19 hazards at the workplace by, for example, installing plastic barriers or ensuring social distancing.”


OSHA has also provided examples of requirements employers have most frequently failed to follow, such as:


• Provide a medical evaluation before a worker is fit-tested or uses a respirator.
• Perform an appropriate fit test for workers using tight fitting respirators.
• Assess the workplace to determine if COVID-19 hazards are present, or likely to be present, requiring the use of personal protective equipment (PPE).
• Establish, implement, and update a written respiratory protection program with required worksite-specific procedures.
• Provide an appropriate respirator and/or other PPE to each employee when necessary.
• Train/retrain workers to safely use respirators and/or other PPE in the workplace.
• Store respirators and other PPE properly in a way to protect them from damage, contamination, and possible deformation of the facepiece and exhalation valve.
• For any fatality that occurs within 30 days of a work-related incident, report the fatality to OSHA within eight hours of finding out about it.
• Keep required records of work-related fatalities, injuries, and illness.


OSHA also reminds small and medium-sized employers that it offers a no-cost, confidential On-Site Consultation Program to help them identify workplace hazards, provide advice for compliance with OSHA standards, and assist in establishing and improving safety and health programs. The consultation program is separate from enforcement and will not result in penalties or citations.

Q: What Is OSHA’s COVID-19 National Emphasis Program? (Updated 7/19/21)

A: A national emphasis program is a temporary program focusing OSHA resources on particular hazards and high risk industries – in this case, the COVID-19 pandemic and industries experiencing greater COVID-19 challenges. Through this program, originally issued in March 2021, OSHA focuses its enforcement efforts on companies placing the largest number of workers at serious risk of COVID-19 infection,  and prioritizes employers who retaliate against whistleblowing employees. The program was revised in July 2021 to adjust the targeted industries. It also continues to enforce protections for workers in non-healthcare industries who are unvaccinated or not fully vaccinated. Additionally, where respirator supplies and services are readily available, OSHA will stop exercising enforcement discretion for temporary noncompliance with the Respiratory Protection standard based on employers’ claims of pandemic-related supply shortages, among other things.

Q: What Is OSHA’s Interim Enforcement Response Plan? (Added 3/17/21)

A: In May 2020, OSHA issued an Interim Enforcement Response Plan regarding its use of workplace inspections during the pandemic. OSHA has now updated its Interim Enforcement Response Plan, effective March 18, 2021, to prioritize the use of on-site inspections where practical, and a combination of on-site and remote methods otherwise. Remote-only inspections will be conducted only where OSHA determines that on-site inspections cannot be performed safely in OSHA’s determination.

Q: Is Hazard Pay Required for Essential Employees Required to Work Onsite? (Added 6/2/21)

A: Hazard pay is not required by federal law. State or local laws may require such pay. If paid, it must be included in the calculation of a non-exempt employee’s regular rate for purposes of determining overtime pay.

VACCINES (Updated 1/22/2021)

Q: May Employers Require Employees to Be Vaccinated? (Updated 8/18/21)

A: Almost certainly yes, in the context of the current pandemic, subject to exemptions as reasonable accommodations for disability or religious needs, or as limited by state law. (See Q&As below for further discussion of reasonable accommodations).

There is also an argument that individuals may have the right to refuse vaccines while under Emergency Use Authorization approval; however, this argument has not found much traction. In July 2021, the U.S. Department of Justice (DOJ) released an opinion definitively stating that the Emergency Use Authorization (EUA) statute, under which current COVID-19 vaccines were approved by the Food and Drug Administration (FDA), “does not prohibit entities from imposing vaccination requirements” including “to return to work or be hired into a new job.” Additionally, the argument has also been rejected by several federal courts, including Bridges v. Houston Methodist Hospital, in which a hospital’s vaccine mandate for its employees was upheld. However, we caution employers that other courts may not necessarily agree. It is possible that another court could come to a different holding and find that an employee who was terminated for refusing the COVID-19 vaccine could, in fact, sustain a wrongful discharge in violation of public policy claim. Nonetheless, several vaccine makers are seeking regular approval, which is expected to be granted in the near future and would render the EUA argument moot. 

In its recently revised Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, OSHA pointedly suggests “that employers consider adopting policies that require employees to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.” This statement assumes that such mandates are possible.

The Equal Employment Opportunity Commission (EEOC) has updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws resource to address the impact of federal non-discrimination laws on an employer’s vaccine requirements, most recently on May 28, 2021. Notably, the guidance specifically asserts that employers may mandate vaccines under certain circumstances, but employees may be entitled to an exemption under the Americans with Disabilities Act due to a medical condition or under Title VII due to a religious belief, and pregnant employees should be extended the same accommodations provided to others. Additionally, in its 2009 Guidance, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, the EEOC recognized that an employer can impose a vaccine mandate in the context of a pandemic, subject to religious or disability accommodations. The EEOC further cautions against a potential disparate impact (i.e. a greater effect) of a vaccine mandate on employees based on race, color, sex, religion, or national origin. Notably, some demographic groups face greater barriers to getting the vaccine, and employees in those groups should not be penalized for that circumstance.

Also, providing increasing support for employer mandates, President Biden has ordered that all federal employees and on-site contractors be vaccinated or subject to regular weekly/semi-weekly testing – an approach that has been adopted by a number of state and local governments, as well as some major corporations.

However, many states have enacted or are considering restrictions on a company’s right to require proof of vaccination (e.g. bans on so-called “vaccine passports”). These bans come in many different forms. Some are limited to governmental or public entities. Others (including Alabama, Florida, North Dakota, and Texas) prohibit private entities from requiring vaccine passports in providing goods, services, or access to the public, but do not govern employers’ ability to impose a vaccine mandate on their employees. Montana prohibits employers from requiring proof of vaccination, and many other states have similar legislation pending before their state legislatures. It is critically important for employers seeking to impose vaccine mandates to stay on top of any changes in state law on this issue.

Q: What Are The Vaccine Requirements For Federal Contractors? (Added 8/18/21)

A: President Biden has ordered that onsite federal contractors will be required to attest to their vaccination status. Anyone who is not fully vaccinated will be required to wear a mask on the job, regardless of their location, practice social distancing from all others, comply with a weekly or twice-weekly testing requirement, and be subject to restrictions on official travel. President Biden has also instructed his team to apply similar standards to all off-site federal contractors as well.

Q: Should Private Contractors and Temporary Employees Be Vaccinated? (Added 1/22/21)

A: Yes. According to the CDC, companies should encourage everyone at a work site to be vaccinated – including contractors and temporary employees, including staffing agency employees. If the company is offering an on-site vaccination program, it can open the program up to these other individuals. If there is no on-site program, it can provide information about vaccination options in the community.

Q: Does Emergency Use Authorization Mean the Vaccine Is Not Safe? (Added 12/18/20)

A: No, according to the Food and Drug Administration, which is responsible for issuing the EUA, as well as for the normal drug approval process. EUA drugs must meet rigorous safety standards. And there will be continued safety monitoring, just as there is for drugs that are approved through the normal process.

Note, however, that under the statutory authority for the EUA, FDA must ensure that recipients of the vaccine are informed that they have the option to accept or refuse the vaccine, along with other information, including that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, and of any available alternatives to the product. This information is contained in an FDA fact sheet on the vaccine.

Q: Can Employers Specify Which Vaccine Employees Should Take? (Added 12/18/20)

A: Technically yes, although realistically, given the limited supply of vaccines, there may not be a choice.

Q: Can Employers Require Employees To Get A Booster Shot? (Added 8/18/21)

A: Yes, if recommended by the CDC. The CDC is recommending booster shots for certain immunocompromised individuals, and it is believed that the federal government will soon acknowledge the need for booster shots. If this is the case, then booster shots can be mandated, in the same way that initial vaccinations may be mandated.

Q: Who Pays for the Vaccine? (Updated 1/22/21)

A: The Government says it will be free. According to the CDC, vaccination providers may be able to charge an administration fee that will be reimbursed by insurance or, for the uninsured, by the Health Resources and Services Administration’s Provider Relief Fund.

Q: Are Employers Required to Pay Employees for Time Being Vaccinated? (Updated 3/17/21)

A: It depends on whether the vaccine is being required or recommended. If the employer is requiring the vaccine, it should pay for the time required to get vaccinated, if not done during regular working time. If the vaccine is recommended, but not mandated, then the employer need not compensate the employee for off-duty time spent being vaccinated.

Under the American Rescue Plan Act (ARPA), employers covered by the Families First Coronavirus Response Act (FFCRA) may choose to provide Emergency Paid Sick Leave (EPSL) or Expanded Family and Medical Leave Act leave (EFMLA) to employees and receive a tax credit for various COVID-19-related reasons – including to receive a vaccine – through September 30, 2021. For more information, please see the American Rescue Plan Act Q&As above.

Q: What Are Vaccination Options Available to Employers? (Added 6/2/21)

A: The CDC suggests that employers assess options for vaccinating the workplace. These include on-site, through existing occupational health clinics, or employer-run temporary or mobile vaccination clinics. They also include off-site, at community-run temporary or mobile vaccination clinics, pharmacies, hospitals, health care provider offices, or federally qualified health centers and other community clinics.

The CDC also recommends that employers consider an on-site workplace vaccination program if they have a large number of on-site workers with predictable schedules, the ability to either enroll in a jurisdiction’s immunization program as a vaccine provider or engage an enrolled provider, and the space to observe social distancing protocols throughout the entire vaccination process.

According to the CDC, employers should consider an off-site program if they do not have the resources to host an on-site program, have a mobile workforce, have workers with highly variable schedules, and/or have workers who would prefer to use a community-based clinic.

Q: What Are the Considerations for an On-Site Vaccination Program? (Added 6/2/21)

A: In addition to referring employers to the National Institute of Health’s Key Elements of a Model Workplace Safety and Health COVID-19 Vaccination Program, the CDC offers the following guidance for on-site programs:

  • Include input during the planning process from management, human resources, employees and, if present, labor representatives.
  • Contact local departments of health for guidance.
  • Consider using a community vaccination provider/vendor, who will have trained nursing staff, can bill insurance, and report immunization data to vaccine registries.
  • Prepare for potential anaphylaxis after vaccination.
  • Offer vaccinations at no charge and during work hours.
  • Provide easy access for all workers, including temporary workers and independent contractors.

Q: What Are the Considerations for Off-Site Vaccination Programs? (Added 6/2/21)

A: The CDC suggests that employers encourage employees to become vaccinated through the following steps:

  • Pay employees for their time getting vaccinated.
  • Support transportation, such as by providing taxi or ridesharing fare, and checking with local health departments for transportation support.
  • Inform employees as to what information they need to bring with them to verify eligibility.
  • Communicate with employees about the importance of vaccination through company intranet, email, newsletters, and portals.
  • Educate and assist employees on how to register for a vaccine appointment.
  • Ensure employees know that there should be no cost for the vaccine.
  • Identify and address barriers to vaccination in the specific workplace.

Q: May Employers Ask Pre-Screening Vaccine Questions? (Updated 1/22/21)

A: Yes, if administering the vaccine. The CDC states that health care providers should ask screening questions to ensure that there is no medical reason that would prevent the individual from receiving the vaccination. The EEOC states that an employer or employer’s agent who is administering the vaccine may ask those pre-screening vaccination questions. Because such questions may elicit information about a disability, however, they may be subject to the ADA’s standard for disability-related inquiries – meaning that the employer must be able to show that such inquiries are job-related and consistent with business necessity. The EEOC notes that, in order to meet this standard, “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” Any medical information obtained in the course of the vaccination process must be kept confidential under the ADA.

The EEOC notes two exceptions to the “job-related and consistent with business necessity” standard. First, if the vaccine is offered on a voluntary basis, then employees can choose not to answer the pre-screening questions, and the employer can then decline to administer the vaccine but may not retaliate against the employee for that choice. Second, and importantly, if the employee receives the vaccine from an unrelated third-party provider (like a pharmacy or other health care provider or clinic), then the ADA does not apply to that provider’s questions.

Q: Can Employers Require Proof of Vaccination? (Updated 6/2/21)

A: Yes, except as may be prohibited by state law. As the EEOC notes, requiring proof of vaccination is not a medical inquiry under the ADA. However, asking why an employee did not get a vaccination might be covered by the ADA as it may elicit information about a disability. The EEOC recommends, and the CDC reiterates, that employers warn employees not to provide any medical information as part of the proof. In addition, any proof of vaccination that the employer receives is considered and must be treated as confidential medical information.

Note that some states prohibit employers from requiring proof of vaccination. It is important to check any applicable state or local prohibitions on “vaccine passports” or other proof before requiring such documentation from employees.

Q: Can Employers Dictate When the Vaccine Is Taken? (Added 12/18/20)

A: Yes. There are reportedly some side effects to the vaccine, which may result in an employee being out of work for a day or two. Employers may schedule vaccinations to ensure that the entire workforce is not impacted at the same time. In addition, employers may require employees to get the vaccination before a weekend or other days scheduled off, so that the employee does not miss work time if they experience side effects.

Q: Should Employees Who Had COVID-19 Still Get the Vaccine? (Added 1/22/21)

A: Yes. It is still unknown for how long antibodies will protect an individual after recovering from COVID-19, and whether such antibodies will protect against variants.

Q: Must Employers Provide Exemptions from a Vaccine Mandate as a Reasonable Accommodation? (Updated 6/2/21)

A: Yes, as long as the accommodation does not pose an undue hardship. Under the Americans with Disabilities Act (for disability) and Title VII (for religion), employees are entitled to a reasonable accommodation, unless it would pose an “undue hardship” on the employer. “Undue hardship” means “significant difficulty or expense” under the ADA (a high standard), and “more than a de minimis cost” under Title VII (a lower standard).

In its May 28, 2021 updated guidance, the EEOC recommends that, as part of any vaccination mandate, employers make clear that they will consider reasonable accommodations for such individuals on a case-by-case basis. Additionally, employers may not disclose that an employee is receiving an accommodation.

Q: What Are Possible Reasonable Accommodations to a Vaccine Mandate? (Added 6/2/21)

A: The EEOC provides some suggestions for reasonable accommodations for those unable to receive a vaccine. Whether or not any of these accommodations would actually be reasonable would depend on the circumstances. Some possible accommodations are: masking; social distancing from coworkers or non-employees; working a modified shift; getting periodic tests for COVID-19; teleworking; and being reassigned to another position.

Q: What Are the Requirements for a Vaccine Exemption Based on a Disability? (Updated 6/2/21)

A: The employee must have a disability and that disability must prevent them from taking the vaccine. The standard ADA analysis applies – the employee must be substantially limited in a major life activity. Generalized fears about the safety of the vaccine are not protected by the ADA.

In addition, it is the employee’s responsibility to request the exemption.

Q: What Documentation May Employers Require to Support a Disability Request? (Added 12/18/20)

A: Employers may request medical documentation about the employee’s disability and functional limitations, as with any disability. Employers may need to be flexible with regard to the timing of the documentation, given the current burdens on the healthcare system in light of the rising COVID-19 numbers.

Q: What About Vaccine Exemptions for Pregnancy? (Added 12/18/20)

A: Pregnant employees may be entitled to an exemption as an accommodations as well. As the EEOC notes in its COVID-19 guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, pregnancy-related conditions may be ADA disabilities. In addition, the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. Thus, the ADA reasonable accommodations analysis above applies to pregnant employees seeking an exemption as well.

Q: What Are the Requirements for a Vaccine Exemption Based on a Religious Need? (Added 12/18/20)

A: The employee’s belief must be religious and it must be sincerely held. Note that, under Title VII, “religion” encompasses more than traditional or standard religions, but also moral or ethical beliefs that are held with the strength of traditional religious views. Such beliefs must address fundamental and ultimate questions having to do with deep and imponderable matters. Note that beliefs about the safety or necessity of a vaccine, even though strongly held, would be considered medical rather than religious beliefs.

In its Religious Discrimination guidance, the EEOC has identified four (non-dispositive) factors to be used in determining whether a belief is sincerely held:

(a) Whether the employee has behaved in a manner markedly inconsistent with the professed belief;
(b) Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
(c) Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons);
(d) Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Q: What Documentation May Employers Require to Support a Religious Exemption Request? (Added 12/18/20)

A: A limited amount of documentation may be required. The EEOC states that “if the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.” Thus, as the EEOC noted in its Religious Discrimination guidance, employers may request oral statements, affidavits, or other documents from the employee’s religious leader(s), as well as from fellow adherents (if applicable), family, friends, neighbors, managers, or co-workers who may have observed the employee’s past adherence or lack thereof, or discussed it with them.

However, because religion encompasses more than traditional views, employees may not be required only to submit such letters from religious leaders to support their beliefs. The EEOC recognizes that a statement from the employee describing their beliefs and practices, including information regarding when the employee embraced the belief or practice, as well as when, where, and how the employee has adhered to the belief or practice, may be sufficient support.

Q: May Employers Require Employees With Disabilities To Become Vaccinated to Enable Their Return to the Workplace? (Added 6/2/21)

A: Although the EEOC has not addressed this issue, the Department of Labor’s Job Accommodations Network has provided guidance that if an employee is teleworking because of a disability, an employer may ask whether getting a vaccine will allow them to return to the workplace. Employers can also require employees to notify them if they become vaccinated (and consequently, no longer need telework as an accommodation).

JAN cautions that employers should not assume that they can end telework once at-risk employees are vaccinated – that would be a case-by-case determination based on the employee’s individual medical situation. If the disability-related limitation does not require telework, then the employer can stop the telework. If other accommodations are available to enable the employee to return to the workplace, those can be provided in lieu of telework. If the employer temporarily suspended essential functions of the employee’s job in order to enable telework, such change would not be deemed permanent or that telework would always be a feasible accommodation.

According to JAN, it is “questionable” whether employers could require an employee with a teleworking accommodation to get a vaccine in order to return to work when the vaccine is not otherwise being mandated. Employers should explore other reasonable accommodations to enable the employee to return to the workplace, and if no such accommodations are available, consider continuing telework as long as the employee is able to perform all of their essential job functions and it is not an undue hardship.

Q: Do Employers Have to Provide Accommodations to Fully-Vaccinated Individuals? (Added 6/2/21)

A: According to the EEOC, an employee that required reasonable accommodations because of a disability that placed them at higher risk for severe illness from COVID-19 may still require reasonable accommodations for underlying disabilities, such as being immunocompromised, even after being fully-vaccinated, since the vaccine may not provide them with as much protection. Employers should engage in the interactive process described above if a fully-vaccinated individual continues to request accommodations.

Q: Does a Vaccine Exemption Pose a Direct Threat or Constitute an Undue Hardship? (Updated 6/2/21)

A: It depends on the circumstances. In some circumstances, given that the CDC is asserting that masks both prevent the spread of COVID-19 and can offer some protection to the wearer (depending on fit, material, etc.), the use of masks and other preventative measures may be deemed an effective substitute for the vaccine, and thus a reasonable accommodation for an employee’s request for a mask exemption. This is not necessarily the case in all circumstances, however.

The EEOC states that an employer may exclude from the workplace an unvaccinated employee who poses a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” This requires an individualized assessment that considers four factors: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  The assessment should be based on a reasonable medical judgment based on current medical knowledge about COVID-19 from the CDC and the employee’s health care provider. This may include information about community spread. The EEOC also states that the assessment should take into account the type of work environment, such as: working alone or with others, working inside or outside, ventilation, frequency of interaction with others, percentage of vaccinated individuals in the workplace, masking requirements, testing requirements, and social distancing capabilities. Based on this assessment, the employer must determine that an unvaccinated individual will expose others to the virus at the worksite and, further, that there is no reasonable accommodation that would reduce or eliminate the risk.

The EEOC notes that, although an employer can bar the unvaccinated employee from the workplace where it determines a direct threat exists, it may need to consider whether other accommodations are possible or rights are available – such as remote work or leave under the Families First Coronavirus Response Act (which is currently set to expire on December 31,2020), the Family and Medical Leave Act, or employer policy. The employer may rely on CDC recommendations or OSHA guidance in determining whether these accommodations pose an undue hardship.

Q: Can Employers Impose Other Requirements in Lieu of a Vaccine? (Added 12/18/20)

A: Yes. Depending on the circumstances, employers could require employees who cannot or will not be vaccinated to wear masks/face coverings, comply with social distancing protocols (maintain 6 feet distance), utilize additional protective clothing or equipment, telework, take leave, or engage in some other appropriate action.

Q: Must Employers Require Employees to Be Vaccinated in Order to Provide a Safe Workplace? (Added 8/18/21)

A: Likely not. Under OSHA’s General Duty clause, employers have the obligation to provide a safe work environment. As long as the employer is complying with OSHA and CDC workplace guidance on preventative and remedial measures for COVID-19 in the workplace (which currently does not require vaccinations), an employer would likely be found to have met its obligations under the General Duty clause. We note, however, that in its most recent August 13, 2021 guidance, OSHA encourages employers to consider policies requiring either vaccination or regular testing.

Employers should be careful in how they manage employees who raise vaccine-related safety concerns. Under OSHA, those employees are protected from retaliation for raising such concerns.

Q: Are Employers Liable If an Employee Experiences Adverse Effects from a Vaccine? (Added 12/18/20)

A: Likely not. Any related illnesses or injuries would likely be covered by state workers’ compensation programs.

Q: Are Adverse Effects to the Vaccine a Recordable or Reportable Event Under OSHA? (Added 6/2/21)

A: OSHA initially stated that adverse effects to the vaccine that met its workplace illness and injury recording requirements would need to be recorded on OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Illness and Injury Incident Report) if the vaccine was mandatory, but not if it was voluntary. It subsequently revised its guidance to state that it will not enforce such recording requirements through May 2022, at which time it would reevaluate its position.

There are reporting requirements under OSHA for any illness resulting from the vaccination – employers have 24 hours to report if the employee is hospitalized within 24 hours of the vaccination, and 8 hours to report if the employee dies within 30 days of the vaccination.

Q: What Should Employers Do If Employees Experience Adverse Effects from the Vaccine? (Added 1/22/21)

A: In post-vaccination guidance for healthcare personnel, the CDC has suggested approaches for evaluating and managing post-vaccination symptoms. In addition, employees should be encouraged to report adverse effects to the federal Vaccine Adverse Event Reporting System. Employees may also be encouraged to enroll in a new smartphone-based tool called “v-safe,” which CDC uses to check in on people’s health after they receive a COVID-19 vaccine. The CDC recommends that employees experiencing a fever should stay home pending further evaluation, which could include COVID-19 testing. If the employee’s soreness from a shot extends past 24 hours or other symptoms do not abate within a few days, the employee should be directed to stay home and contact their health care provider.

Q: Are Employees Entitled to FFCRA or Other Leave Due To Adverse Effects from a Vaccine? (Updated 3/17/21)

A: Previously, the reasons for which FFCRA leave could be taken did not include COVID-19 vaccinations. Under ARPA, effective April 1, 2021, the reasons for which an employee may take EPSL or EFMLA will include obtaining a vaccination or adverse side effects from the vaccine. Thus covered employers may choose to let employees use EPSL or EFMLA (and take the tax credit) until September 30, 2021.

In addition, statutory sick leave or PTO will apply. And if the employer provides other paid leave, such as vacation or non-statutory sick/PTO, and employees who meet the criteria for the leave may use such leave.

Q: Are Employees Entitled to FFCRA or Other Leave If They Refuse a Vaccine and Get COVID-19? (Updated 3/17/21)

A: Yes. A covered employer may choose to allow its employees to use EPSl or EFMLA, for which the employer will receive a tax credit, at least until September 30, 2021. If they have statutory sick leave or PTO available, they may use that.

One nuance – if an employee chooses not to be vaccinated and willfully engages in high risk activity that results in their becoming sick, employers may be able to assert that non-statutory employer-provided paid leave is not available for use.

Q: Should Vaccinated Employees Wear Masks/Face Coverings? (Updated 8/18/21)

A: The CDC had previously asserted that fully-vaccinated individuals need not wear masks/face coverings; however, given the spread of the Delta variant, the CDC has revised its guidance to state that fully-vaccinated individuals should wear a mask in public indoor settings if they are in an area of substantial or high transmission (such areas are indicated on a CDC map). This includes much of the country, and most major metropolitan areas. We note that the CDC does not define “public indoor settings.” One reasonable interpretation is anywhere where the public (i.e. non-employees) has access, such as retail space but also reception areas and multi-employer building lobbies, for example. Another, more expansive but still reasonable interpretation may include internal common areas, such as conference rooms, bathrooms and hallways.

The CDC also states that fully-vaccinated individuals may choose to mask regardless of the level of transmission, particularly if they or someone in their household is immunocompromised or at increased risk for severe disease (including older adults or those with certain medical conditions, like diabetes, obesity or heart conditions), or if someone in their household is unvaccinated.

 

Q: What Can/Should Employers Do About Employees’ Vaccine-Related Concerns? (Updated 6/2/21)

A: Listen, do not dismiss. This is an uncertain time and people understandably are fearful. Employers should take the time to hear the concerns and try to address them with facts and explanations. Document the discussions. Ultimately, if the employee’s concerns are unreasonable or unwarranted, the employer can still move forward with vaccine requirements, absent any state law that prohibits such mandates. And if an employee refuses to be vaccinated as part of a mandatory vaccination program, and no reasonable workplace accommodation is required or available, the employer may place the employee out of work unless and until they comply with the mandate or the mandate is no longer necessary.

Some employers may question whether they may terminate an employee who refuses to be vaccinated. We note that, under the EUA statute, an individual has the right to refuse the vaccine. Given this statutory right, employers may wish to refrain from terminating the employee, in order to avoid a possible wrongful discharge claim. Rather, the employer might consider other options, such as telework or leave. However, this is complicated, and employers should consult with counsel.

Employers should be careful, however, with any employee expressing workplace safety concerns, as OSHA protects employees who raise such concerns from retaliation. In other words, employees cannot be disciplined for raising such concerns. This is different than not allowing an employee who refuses to be vaccinated to work, as the latter is a safety consideration, not a disciplinary one.

If there is a group of employees expressing concerns about a vaccine mandate – or concerns that an employer is not mandating the vaccine for all employees – this would likely be considered protected concerted activity under the National Labor Relations Act. This does not mean that the employer must yield to their objections, just that those employees may not be disciplined or terminated for merely voicing the concerns.

To the extent that employees are expressing concerns about a vaccine mandate as a political matter, some states have laws that protect legal off-duty political activity. But off-duty laws do not protect workplace activity.

Q: How Can Employers Build Confidence in Vaccinations? (Added 6/2/21)

A: The CDC sets forth steps to build worker confidence in the vaccine, the vaccine providers, and the processes by which the vaccine was developed, authorized, manufactured and used:

  • Encourage company leaders to be vaccine champions.
  • Communicate transparently to all workers about vaccination.
  • Create a communication plan to share key messages, including the protection of workers and their families, through various channels like posters and emails.
  • Provide regular updates on the benefits, safety, side effects, and effectiveness of the vaccine.
  • Celebrate the decision to be vaccinated, through stickers, selfies, and other visible means.

Q: Must Unionized Employers Bargain Over Vaccine Policies? (Added 12/18/20)

A: Yes, vaccination policies are mandatory subjects of bargaining, absent contractual authority granting unilateral employer implementation or extra-contractual evidence of a union waiver of its right to bargain over the policy.

A unionized employer should first look to its CBA to determine whether it may unilaterally implement a mandatory vaccination program without first notifying and bargaining with the union. If no contractual authority exists, the employer should review any past practice of implementing or altering vaccination programs. Even if the employer is privileged to act unilaterally, either via an expansive management rights clause or a previous waiver-by-inaction on the union’s part, the employer must remain mindful of its obligation to bargain over the effects of its decision to implement a mandatory vaccination program, if requested to do so by the union. Employers should provide sufficient notice to the union before implementing vaccination policies to provide the union with time to bargain over the decision or effects of the mandatory vaccination program.

Q: May Employers Offer an Incentive to Employees to Encourage Vaccination? (Updated 6/2/21)

A: Generally, yes, although the permissible type and amount of incentive may vary depending on the employer’s vaccination program.

Interestingly, under ARPA, covered employers (those with fewer than 500 employees) may allow employees to use EPSL or EFMLA when receiving a vaccine, and the employers will receive a tax credit for that leave. Essentially, this incentive then becomes no-cost to the employer.

In its updated May 28, 2021 guidance, the EEOC has set forth guidelines on permissible incentives under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

Employers may provide a limited incentive to employees receiving a vaccine through an employer-administered program. Such a program involves the employer asking screening questions. Under the ADA, the incentives cannot be so large as to pressure employees to reveal their medical information in response. The screening questions do not require genetic information, so GINA does not apply.

Employers may not provide any incentive to employees for family members receiving a vaccine through the employer-administered program. GINA prohibits employers from requesting employee genetic information, which may be revealed by family medical information, and vaccination screening questions solicit the family member’s medical information.

Employers may provide an unlimited incentive to employees who provide proof that they received a vaccine from a community provider (e.g. health department, pharmacy, health care provider, etc.). Because the employer is not asking screening questions, the concerns about the coercive effect of a large incentive does not apply. Additionally, because requiring proof of vaccination is not a medical inquiry under the ADA and does not solicit genetic information under GINA, giving an incentive for providing such proof does not implicate either law.

The DOL has stated that vaccine incentive payments are not included in the calculation of non-exempt employees’ regular rate for purposes of determining overtime pay rates.

Employers should consult with counsel before implementing such incentives.

Q: How Else May Employers Encourage Employees to Become Vaccinated? (Updated 6/2/21)

A: The CDC suggests that employers host a vaccination clinic in the workplace, during work hours and at no cost to employees, and refers employers to local health departments for further guidance, along with its Guidance for Planning Vaccination Clinics Held at Satellite, Temporary, or Off-Site Locations and Resources for Hosting a Vaccination Clinic. If a workplace vaccination clinic is not possible, the CDC also recommends: allowing employees to take paid leave to get a vaccination elsewhere; supporting transportation to off-site clinics; displaying posters/flyers in breakrooms, lunchrooms and high-traffic areas with information about vaccine clinic locations in the community; use company communications (e.g. emails, newsletters, intranet, portals) to inform employees about the importance of vaccinations and where to obtain them.

Many of these recommendations are echoed by the EEOC. Some additional recommendations from the EEOC include the following:

  • To help employees identify vaccination locations, the EEOC notes there are helpful websites, includinggov and through local health departments.

Employees with little or no English-speaking skills may require assistance to obtain the vaccine, such as through the CDC’s hotline: 800-232-4636; TTY 888-232-6348.

Q: What Vaccine Resources Has the CDC Provided to Employers? (Updated 6/2/21)

A: The CDC has provided Frequently Asked Questions and created toolkits for employers of essential workers, medical centers/clinics/clinicians, and long-term care facilities, although the resources are certainly applicable to employers generally. The toolkits contain FAQs for employers and employees, sample communications, posters, social media content, and more. The CDC has also issued guidance on workplace vaccination programs that reiterates and expands upon prior guidance on this topic, with the intent of increasing vaccine uptake among essential (and other) workers.

Q: What Is the Workplace Impact of the CDC’s Rules About Vaccinated Individuals? (Updated 8/18/21)

A: The CDC has issued updated guidance on the activities in which fully-vaccinated individuals (meaning at least two weeks are the second/only required shot for the vaccine in question) may engage (and OSHA recently aligned its guidance with that of the CDC). A prior version of the guidance provided that such individuals may essentially resume most pre-pandemic activities without a mask or social distancing, except as otherwise required by state or local mandates; however the guidance has been revised in light of the Delta variant. Thus, CDC recommends that, in areas of substantial or high transmission rates, fully-vaccinated individuals wear a mask in indoor public settings. Additionally, an employer may establish stricter protocols than recommended by CDC or OSHA. But based on the CDC’s guidance on vaccinated individuals, employers could take the following approach to workplace mandates:

  • Workspace generally: Most workplaces will have a mix of vaccinated and unvaccinated individuals. In areas of high or substantial transmission, where the workplace is also accessible to the public, the CDC recommends that all employees as well as vendors, clients or other visitors be masked regardless of vaccination status.
    Otherwise, in areas of low or moderate transmission or in non-public workspaces, vaccinated employees need not wear masks or observe social distancing protocols. However, even in these areas, the CDC still says that unvaccinated employees should continue to maintain all COVID-19 protocols generally, including masking and distancing. Additionally, in these areas, if all employees in a particular enclosed and non-public workspace are vaccinated, those employees need not wear masks or stay at least six feet apart – unless there is a state or local masking mandate that still applies to the workplace (or indoor spaces, more generally). Vaccinated vendors, clients or other visitors to the workplace also need not wear a mask, while unvaccinated ones should continue to do so.
  • Small group meetings: If all participants in a non-public, small group meeting have been vaccinated, they need not wear masks or stay at least 6 feet apart during the meeting. Although the CDC guidance permits vaccinated individuals to be within 6 feet of unmasked, unvaccinated ones, the guidance for unvaccinated individuals continues to emphasize the need for a mask and distancing, apparently even from vaccinated individuals. The best practice would be to require unvaccinated employees to continue to wear a mask when meeting with their vaccinated, mask-free colleagues.
  • Outdoor work: Fully vaccinated employees working outdoors need not wear masks or socially distance from other employees, regardless of how many people are around or the transmission rate in their area. Again, unvaccinated employees should continue to mask, socially distance (where possible) and avoid large groups.
  • Lunchrooms: If fully vaccinated employees wish to eat together, they can be permitted to do so. Arguably, unvaccinated colleagues could join them, although the CDC guidance for those individuals is to continue to observe measures such as masking and social distancing.
  • Business travel: Employers can allow fully-vaccinated employees to resume business travel, both domestic and international. Domestic travelers need not test before or after travel, while international travelers must be tested before returning to the U.S., with testing recommended 3-5 days following return. Both domestic and international travelers need not quarantine following travel.  Be aware that there may be additional testing and quarantine requirements imposed by the travel destination or local/state mandates, however. Employers should continue to try to minimize any required travel for unvaccinated employees. Moreover, employers should be thoughtful in responding to employee concerns about required travel – particularly for older employees or those with underlying health conditions, even if they have been fully vaccinated.
  • Exposure to COVID-19: The CDC states that if it has been more than two weeks since the employee was fully vaccinated, they need not quarantine if they come into close contact with a COVID-19 positive individual.  Exposed, vaccinated employees should still monitor for symptoms. But in addition, they now should get tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wear a mask in public indoor settings for 14 days after exposure or until a negative test result. Unvaccinated or partially vaccinated individuals should quarantine for at least 7 days with testing after 5 days, or for 14 days without testing. (Note that OSHA recommends that those who are not fully vaccinated also get tested immediately after exposure).
  • Symptomatic Employees and Those Testing Positive: Because the vaccine is not 100%, some vaccinated employees will still get COVID-19. Of course, if any employee develops symptoms of COVID-19 following exposure, they should isolate in accordance with the CDC’s guidelines, seek a medical evaluation, and be tested. Those testing positive should isolate. Employees with symptoms or who have tested positive may be able to work remotely, or may need leave. If sick leave is available or mandated by state or local law – or FFCRA leave is available and allowed by the employer (through September 30, 2021) – they will be entitled to take such leave during the isolation period.
  • Reasonable accommodations: Vaccinations do not eliminate the need to provide reasonable accommodations, if the employee has a disability. Thus, for example, employers should not be quick to assume that an employee with a condition that put them at higher risk of serious illness from COVID-19 no longer needs to telework following vaccination. Reasonable accommodations should always be considered on a case by case basis, and a disabled employee may still need to telework following vaccination, if the medical provider supports that requirement.

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? (Updated 9/10/20)

A: The EEOC states that an employer that required its employees to telework is not automatically required to grant telework as a reasonable accommodation when the workplace reopens. Telework is not required if there is no disability-related need for telework, or if there is an effective alternative. Moreover, if the pandemic-related telework required the employer to excuse the performance of an essential job function, the employer need not continue excusing such performance, as that would not be a reasonable accommodation. A fact-specific inquiry as to what is reasonable is required.

If an employee had requested telework as a reasonable accommodation prior to the pandemic but was denied because of concerns that the employee could not perform their essential job functions remotely, their telework experience during the pandemic might be relevant to a renewed request for a telework accommodation. Essentially, the pandemic-related telework functions as a trial period to see if the employee can satisfactorily perform all their essential job functions while working remotely, and the EEOC states that employers should consider any new accommodations requests for telework “in light of this information.”

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, if in fact this is the case.

Q: How Do Employers Compensate Employees Working Remotely? (6/2/21)

A: In the context of the pandemic, the DOL has issued guidance on telework pay , which it updated in April 2021, reiterating that employers must pay for all hours worked, including hours not requested but “suffered or permitted” to be worked – meaning hours the employer knew or should have known about through reasonable diligence. However, employers are not required to pay for those hours worked that it did not know about and had no reason to know about: “[t]he reasonable diligence standard asks what the employer should have known, not what it could have known.”

Thus, 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.

Specifically as to telework, the DOL states: “One way an employer generally may satisfy its obligation to exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work is by establishing a reasonable process for an employee to report uncompensated work time.” The employer, of course, cannot discourage accurate reporting under this process. It is also important that the employee knows that the process exists and how to use the process.

Notably, if an employee fails to report unscheduled hours worked through the procedure, the DOL specifically states that “the employer is generally not required to investigate further to uncover unreported hours.” Therefore, as a normal matter, the employer does not need to sort through all its records/data to determined hours worked. As the DOL states, “Though an employer may have access to non-payroll records of employees’ activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours, reasonable diligence generally does not require the employer to undertake impractical efforts such as sorting through this information to determine whether its employees worked hours beyond what they reported.”

Unless a telecommuting employee is subject to a collective bargaining or other employment agreement, or telecommuting is being permitted as a reasonable accommodation under the Americans with Disabilities Act (ADA), the DOL states that an employer may reduce the pay of such non-exempt employees as long as they receive at least the applicable minimum wage rate.

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.

An employer may prospectively reduce the salary of exempt employees, including those who are able to telecommute, due to economic reasons related to COVID-19 or an economic downturn, as long as the employee continues to receive the required minimum weekly salary ($684).

In order to accommodate childcare needs, an employer that allows employees to telework with flexible hours during the COVID-19 emergency does not need to count as hours worked all the time between an employee’s first and last principal activities in a workday, as is typically required. Rather, only those hours actually worked need be paid – but the employee and employer should be very clear as to what the arrangement is.

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.

Q: Must Employers Extend Workplace Accommodations To Disabled Employees Who Are Now Telecommuting? (Added 9/10/20)

A: It depends. If an employer requires its employees to telework, an employee who receives workplace accommodations is entitled to reasonable accommodations while telecommuting. However, such accommodations may be the same or different from the workplace accommodations, depending on the particular situation. The EEOC acknowledges that accommodations that were feasible in the workplace may be an undue hardship in a telecommuting situation. In particular, the EEOC notes, “the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.” The EEOC encourages employers and employees to be creative and flexible, and to consider interim accommodations.

TRAVEL

Q: How Should Employers Handle Business Travel? (Updated 6/2/21)

A: The CDC has updated its guidance for fully-vaccinated individuals to allow them to resume travel, which would include business travel. For unvaccinated and partially-vaccinated employees, however, 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 for unvaccinated or partially-vaccinated employees 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.

There are quarantine requirements for certain overseas travel that apply to unvaccinated/partially-vaccinated individuals, although not fully-vaccinated individuals. In addition, a number of jurisdictions are imposing quarantines for travel to certain states and areas with positivity levels exceeding a certain amount. Moreover, with regard to international travel the CDC is recommending getting tested 1-3 days before travel and again 3-5 days after travel, applicable regardless of vaccination status. States may also have testing requirements or recommendations. Please check for any applicable restrictions before requiring any travel.

Q: What If Employees Express Concern Regarding Travel? (Updated 6/2/21)

A: Assuming that travel is permitted by governmental authorities and/or 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 vaccination status, age, pregnancy, underlying medical conditions, and mental health disorders.  Employers should assess whether ADA accommodations are available that pertain to travel.  If an employee, regardless of vaccination status, 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? (Updated 8/18/21)

A: Employers can require employees to report on personal travel and can require compliance with CDC travel restrictions, although this is likely unnecessary or unwarranted for fully-vaccinated individuals.  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. In states without such laws, employers may prohibit such travel by unvaccinated/partially-vaccinated workers and/or may take disciplinary or other action based on such travel.

Employers can and should require unvaccinated/partially-vaccinated employees traveling to CDC Level 2 or 3 countries or areas with positivity levels that exceed a particular percentage (often addressed by state emergency orders or travel advisories) to self-quarantine for 14 days or, if permitted by the local public health department, for 7 days with a negative test or 10 days without a test before return to work, even if the employee exhibits no symptoms. In addition, a number of states and local jurisdictions have imposed such quarantine requirements for travel to/from certain states. Moreover, the CDC is recommending getting tested 1-3 days before travel and again 3-5 days after travel, regardless of vaccination status. States may also have testing requirements or recommendations. At this time, many employers are taking the precaution of requiring self-quarantine for any travel by unvaccinated/partially-vaccinated workers, given the community spread occurring within the U.S.  If such self-quarantine is not required by the employer, it can still require employees who have traveled, regardless of vaccination status, to self-monitor and report any COVID-19 symptoms or exposure to COVID-19.

Employers may also require employees to get tested following travel, although the CDC no longer recommends such testing for fully-vaccinated individuals traveling domestically. The EEOC permits such testing before allowing an employee to return to work. Some jurisdictions also provide for testing in lieu of quarantine, in some cases after a several-day waiting period. However, the CDC notes that it can take up to 14 days for the infection to appear. That means that even after someone tests negative, even if they waited several days to do so, they may still test positive later.

As for what leave employees may take during any quarantine period, they may be entitled to Emergency Paid Sick Leave (EPSL) under an employer’s voluntary extension of the FFCRA paid leave provisions as a result of governmental quarantine requirements, depending on whether such requirements constitute an “order” of quarantine, or a doctor’s order that they quarantine. They would not be eligible for EPSL as a result of an employer’s required quarantine period, although they would be if the employer required testing or diagnosis. Other state and local COVID-19 leave laws may also apply to quarantine periods. If FFCRA E-PSL or these other COVID-19 leaves are not available, an employer could allow them to use whatever other accrued paid leave they have, although likely not sick leave since they are not actually sick – unless their doctor is recommending that they stay home.

Absent a doctor’s order that triggers the use of sick leave, employers may also state that employees must take the time off unpaid, even if they have accrued paid leave. A cautionary point about unpaid leave, however—under the FLSA, if exempt employees are ready, willing and able to work and do not work due to the employer’s directive, they must be paid their full salary in any workweek in which they perform work.  In that instance, requiring exempt employees to use available paid leave is a better option.

In addition, we believe that an employer may deny an unvaccinated/partially-vaccinated 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 additional 14 days (or, as permitted by a local public health department, for 7/10 days. This assumes, of course, that the employee could not telework during the quarantine period.

SCREENING AND TESTING EMPLOYEES AND OTHERS

Q: Can Employers Require An Employee To Notify Them If They Have Been Exposed To COVID-19, Have Symptoms, Or Tested Positive? (Updated 6/2/21)

A: Yes, such employees should be required to notify their supervisors if they are experiencing symptoms of or if they have been diagnosed with COVID-19. In addition, unvaccinated or partially-vaccinated employees can be required to report 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 or exposure.

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, Been Diagnosed With Or Tested For COVID-19? (Updated 6/2/21)

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.  In addition, The EEOC confirms that employers may ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19. This is to ensure the health and safety of others in the workplace. The EEOC states that employers generally are not permitted to ask such questions of teleworking employees who are not physically interacting with others. (One exception, of course, would be if an employee is requesting emergency paid sick leave under the Families First Coronavirus Response Act because they have been advised by a health care provider to quarantine or they are symptomatic and are seeking a diagnosis).

Employers may also ask a particular employee (as opposed to all employees generally) questions to determine if they have COVID-19 or require them to undergo screening or testing only where they have a reasonable belief based on objective evidence that the employee might have the disease.

Employers may not ask employees if a family member has COVID-19 or symptoms, as that would violate the Genetic Information Nondiscrimination Act’s prohibition on medical inquiries about family members. Employers are permitted to ask, however, if employees have had contact with anyone who has the disease or symptoms, although such questions may be less useful if the employee has been fully-vaccinated.

Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. COVID-19-related information may be retained in existing employee medical files; new COVID-19-specific files are not required. If managers are unable to follow the normal confidential information protocols while teleworking, they must ensure the confidentiality of records as much as possible, including by securing hard copy documents and limiting access to electronic records.

Q: May Employers Take Employees’ Temperatures To Determine Whether They Are Infected? (Updated 6/2/21)

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, employers may choose not to take the temperature of fully-vaccinated employees, although certainly they can be required to report if they have a fever or other symptoms of COVID-19.

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.

Note that OSHA recommends that employees conduct self-checks of their temperature at home, before reporting to work, in order to avoid bringing infection into the workplace. If an employer chooses to conduct temperature checks at the workplace should be aware of several issues:

  • Because temperature checks are a medical exam, they should not be conducted where those waiting for the checks can see them.
  • If employees are conducting the temperature checks, they must be provided with training and PPE to protect them from potential infection. In addition, they must be trained to treat the results as confidential medical information.
  • Employers who conduct daily temperature checks may retain a confidential log of the results. OSHA notes that employers who create records of health screening or temperature checks might be governed by the Access to Employee Exposure and Medical Records standard, which requires employers to retain such records for the duration of each worker’s employment plus 30 years, in addition to following confidentiality requirements. This requirement applies if the records are made or maintained by a physician, nurse, other health care personnel, or technician.

If thermal imaging devices are used, there may be biometric data concerns. Thermal imaging systems that use facial recognition may collect personal information that is regulated by privacy laws in various states. Many of these state laws, like Maryland’s Personal Information Protection Act, define “personal information” to include biometric data. These state laws generally require businesses collecting and storing personal information to notify all affected individuals in the event of a data breach. Some, like Illinois, may also require employers to provide notice and obtain consent to collect biometric data.

Q: Must Employees Be Paid for Time Spent Getting a Temperature Check? (Added 6/2/21)

A: The time spent performing a temperature check before an employee begins work may be compensable if it is necessary for the employee to perform their job. In addition, an employee must be compensated for any time required to undergo a temperature check or health screening during the workday.

Q: How Else Are Employers Permitted To Screen Employees To Protect Against COVID-19? (Updated 6/2/21)

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.  Such questions, however, will likely not be necessary for fully-vaccinated employees.

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: What May Employers Do If An Employee Refuses To Answer Questions Or Undergo Screening/Testing? (Added 9/10/20)

A: An employer may bar an employee from the workplace if they refuse to undergo screening or answer questions about testing, symptoms or infection with COVID-19. The EEOC recommends, however, that the employer ask about the reasons for the refusal, as the employer may be able to address the employee’s concerns about providing the information (e.g. privacy, needing accommodations for screening).

Q: Are Employers Permitted To Screen Visitors? (Updated 6/2/21)

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.

Note that some states prohibit businesses from requiring proof of vaccination from customers and other visitors to the workplace. Employers should check for any applicable state or local restrictions.

Q: Are Employers Permitted to Screen Applicants? (Updated 6/2/21)

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.

If an employer has a vaccine mandate, they may ask if the applicant is vaccinated or is able to comply with the vaccine mandate if hired. Employers should be careful not to solicit medical information from applicants beyond the initial vaccination question. Additionally, employers would need to provide reasonable accommodations for disability or religious needs.

Q: May Employers Require COVID-19 Testing Before Allowing Employees To Return To The Workplace? (Updated 6/2/21)

A: Yes. According to the EEOC, under the current circumstances, employers may administer (or require to be administered) a COVID-19 test to employees before they enter the workplace to determine if they have the virus. Such testing, however, is not necessary for fully-vaccinated employees, unless they are experiencing symptoms of COVID-19. Employers should ensure that such tests are accurate and reliable, in accordance with guidance from the U.S. Food and Drug Administration. Keep in mind, however, that there may be false negatives or positives, and that testing will not reveal future infection. In addition, any test results are confidential medical information.

Note that there are different types of tests. Rapid tests, while they provide results more quickly, have been found to be less accurate. PCR tests are considered to be more reliable, but results take longer. Employers may specify which type of test employees must take.

Q: May Employers Require Antibody Testing Before Allowing Employees To Return To The Workplace? (Added 7/13/20)

A: No. The EEOC states that employers may not require antibody testing before permitting employees to re-enter the workplace. Antibody testing is a medical examination, which, under the American with Disability Act, must be “job-related and consistent with business necessity.” In light of the Centers for Disease Control and Prevention’s earlier guidelines that antibody testing “should not be used to make decisions about returning persons to the workplace,” the EEOC states that such testing does not meet the ADA’s standard for medical examinations. (This is in contrast to COVID-19 viral tests for active infection, which the EEOC has stated meet the ADA standard.)

Q: May Employers Test Employees Periodically for COVID-19? (Updated 8/18/21)

A: Yes, the EEOC states that, in addition to testing before permitting employees to enter the workplace, employers may also conduct periodic testing. Such testing meets the Americans with Disabilities Act’s (ADA) requirement that testing be both job-related and consistent with business necessity – in the context of the pandemic, to determine if the presence of such employees in the workplace poses a direct threat to the health of others. The EEOC notes that the ADA does not interfere with employers’ following the workplace testing recommendations of the Centers for Disease Control and Prevention (CDC), and that compliance with the CDC’s current guidance meets the ADA’s “business necessity standard.”

The CDC has stated that such testing is not necessary for fully-vaccinated employees. In its updated guidance, OSHA suggests that employers consider policies that require either vaccination or regular testing.

Q: Must Informed Consent Be Part of Any Testing Program? (Added 2/2/21)

A: Yes, according to the CDC in its guidance on workplace testing programs, which adds to its previous guidance, Testing Strategies: Considerations for Non-Healthcare Workplaces.

Q: What Measures Should Be Taken To Ensure Informed Consent? (Added 2/2/21)

A: The CDC states that employers should take the following measures when developing a testing program in order to support appropriate decision-making by employees:

  • Ensure safeguards are in place to protect an employee’s privacy and confidentiality.
  • Provide complete and understandable information about how the employer’s testing program may impact employees’ lives, such as if a positive test result or declination to participate in testing may mean exclusion from work.
  • Explain any parts of the testing program an employee would consider especially important when deciding whether to participate. This involves explaining the key reasons that may guide their decision.
  • Provide information about the testing program in the employee’s preferred language using non-technical terms. Consider obtaining employee input on the readability of the information. Employers can use this tool to create clear messages.
  • Encourage supervisors and co-workers to avoid pressuring employees to participate in testing.
  • Encourage and answer questions during the consent process. The consent process is active information sharing between an employer or their representative and an employee, in which the employer discloses the information, answers questions to facilitate understanding, and promotes the employee’s free choice.

Q: What Information Should Be Included In The Testing Disclosures To Ensure Informed Consent? (Added 2/2/21)

The CDC recommends that the following be contained in testing disclosures, acknowledging that much of the following information are addressed in the FDA’s Emergency Use Authorization Fact Sheet, which must be given to all individuals prior to receiving the vaccine:

  • The manufacturer and name of the test
  • The test’s purpose
  • The type of test
  • How the test will be performed
  • Known and potential risks of harm, discomforts, and benefits of the test
  • What it means to have a positive or negative test result, including:
    • Test reliability and limitations
    • Public health guidance to isolate or quarantine at home, if applicable

Q: What Other Topics Should Employers Be Prepared To Address As Part Of The Informed Consent Process? (Added 2/2/21)

A: The CDC states that employers should also be prepared to address the following:

  • General considerations, such as why testing is being offered, frequency of testing and consequences of refusing the test.
  • Scheduling and payment, including who schedules the appointments, whether the employee is paid for travel and testing, who pays for the test and any required follow-up care, and accommodations or alternatives to testing.
  • Testing site, such as who administers the test, where the test will be done, and whether any screening will be required prior to the test.
  • Communication and interpretation of results, including who interprets the results, how and to whom results are communicated, and what happens if the employee tests positive.
  • Privacy, such as what personal information must be provided by the employee, how and for what period it is retained, and how it will be kept confidential and secure.
  • Seeking additional help or reporting injuries, such as who to contact for additional information or assistance.

Q: When Else May Employers Require Testing Of Employees? (Updated 8/18/21)

A: According to the CDC, testing is recommended for: those with symptoms of COVID-19; those who have been in close contact (unless fully-vaccinated); and those who have been asked or referred for testing by their healthcare provider, or local/state health department. Individuals should home-isolate pending their test results.

The CDC defines “close contact” as:

  • Being within 6 feet of an infected individual for a cumulative total of 15 minutes or more during a 24 hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the infected individual is isolated
  • Providing care at home to an infected individual
  • Having direct physical contact (e.g. hugging or kissing) with an infected individual
  • Sharing eating or drinking utensils with an infected individual
  • An infected individual sneezed, coughed or somehow got respiratory droplets on the person

Of significance, the CDC suggests that there may be immunity for up to three months following infection with COVID-19. Specifically, the CDC states that those who have had COVID-19 do not need to quarantine or get tested again following close contact with an infected individual for a period of three months, unless they have symptoms. Those who are fully-vaccinated should get tested 3-5 days following exposure, but need not quarantine. Those who are not fully-vaccinated should stay at home for a quarantine period (14 days, unless a local public health department permits 7 days with a negative test or 10 days without a test) following their last contact with the infected individual and self-monitor for symptoms.

As noted above, employers may specify what type of COVID-19 test is required (e.g. rapid test, PCR test).

Q: Must Employees Be Paid for Time Spent Obtaining a COVID-19 Test? (Added 6/2/21)

A: The time spent obtaining a COVID-19 test, whether it is during the normal workday or during off-duty hours, may be compensable if it is necessary for the employee to perform their job.

REASONABLE ACCOMMODATIONS UNDER THE ADA FOR EMPLOYEES

Q: What Are Employers’ Reasonable Accommodation Obligations Under the ADA During The COVID-19 Pandemic? (Updated 6/2/21)

A: The Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with disabilities to enable them to perform the essential functions of their jobs or to enjoy equal benefits and privileges of employment. This obligation continues regardless of the pandemic, and applies equally to critical infrastructure or essential workers. Thus employers must engage in the interactive process with all employees with regard to any request for accommodation, which includes obtaining medical information to support the request where the need for accommodation is not obvious, as well as an exploration of possible accommodations. Because of the pandemic and if the need is urgent, however, employers may choose to forego or shorten the exchange of information and provide an accommodation on a temporary basis, subject to changing circumstances.

Accommodations need not be provided if they pose an undue hardship. The circumstances of the pandemic may cause an undue hardship where it would not have done so prior to the pandemic. The EEOC recognizes that current circumstances may create “significant difficulty” in acquiring or providing certain accommodations. For example, it may be significantly more difficult at the current time to conduct a needs assessment or to obtain certain items required for an accommodation. Additionally, it may be significantly more difficult to provide temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.

Moreover, the EEOC acknowledges that, while expense is not normally a significant consideration (as compared with an employer’s overall budget and resources), current economic conditions, such as the loss of some or all of the employer’s income stream or the amount of discretionary funds available in consideration of other expenses, makes expense relevant to the undue hardship assessment. The employer must still weigh the cost of an accommodation against its current budget, and must consider no-cost or low-cost alternatives.

As noted above in the Vaccines section, employers that choose to impose a vaccine mandate must consider reasonable accommodations for employees who cannot get a vaccine due to a disability or religious needs.

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.

Q: May Employers Exclude Employees With Underlying Conditions At Increased Risk Of Severe Illness From The Workplace? (Added 7/13/20)

A: No. If an employer knows that an employee is at higher risk of severe illness due to COVID-19 but the employee has not requested an accommodation, the employer may not simply refuse to bring the employee back into the workplace. The employer must engage in an analysis to determine if the employee poses a “direct threat” to their own health, meaning a significant risk of substantial harm, by returning to the workplace. The employer must consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. And even if there is a direct threat, the employer must engage in the interactive process to determine if there a reasonable accommodation that would eliminate or reduce the risk to an acceptable level. If no reasonable accommodations are available to enable the employee to return to their job position in the workplace, the employer must consider alternative accommodations like telework, leave, or reassignment to another position (perhaps in a safer location or that permits telework).

Examples of accommodations that may eliminate or reduce an employee’s direct threat to self include additional or enhanced protective gowns, masks, gloves, or other gear beyond the norm. They also include additional or enhanced protective measures such as barriers or increased space between the high-risk employee and others, as well as the elimination or substitution of non-essential, “marginal” job functions. Modifications of work schedules and work locations are other possible accommodations. In addition to discussing possibilities with the employee, the EEOC suggests that the Job Accommodation Network, www.askjan.org, may provide assistance in identifying accommodations.

Q: Must Employers Provide Reasonable Accommodations To Employees At Greater Risk From COVID-19? (Updated 7/13/20)

A: If an employee has a disability that puts them at a greater risk from COVID-19, employers may need to provide reasonable accommodations to eliminate possible exposure and reduce the “direct threat” of harm to the employee’s health that is posed in the workplace. According to the EEOC, these may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. An employee must request such an accommodation, whether verbally or in writing. A third party, like a doctor, may make the request for the employee. The terms “reasonable accommodation” and “ADA” are not required, as long as the employee communicates that they have a medical condition that requires some workplace change. The employer is then required to engage in the interactive process, which may involve asking questions and obtaining medical documentation, to determine if a reasonable accommodation is available.

According to the EEOC, these accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. They ma also include elimination or substitution of particular “marginal” functions (but not the “essential” functions of a particular position). In addition, accommodations may include temporary modification of work schedules to minimize contact with co-workers or the public, including while commuting, or moving the location where work is performed.

Q: Is A Request For An Alternative Screening Method A Request For Accommodation? (Added 7/13/20)

A: Yes. The EEOC notes that if the requested change is easy to provide and inexpensive, an employer may choose to make it available to anyone without going through the interactive process. If the requesting employee’s disability is not obvious or known, however, the employer is entitled to ask for information to establish the existence of a disability and its limitations, such that an accommodation is required. The employer may then determine if that accommodation or an alternative effective accommodation can be provided without undue hardship. Such requests may also be made for religious needs under Title VII.

Q: Are Employers Required To Accommodate Family Member’s Increased Risk Of Severe Illness? (Added 7/13/20)

A: No. Employers are not required to accommodate a non-disabled employee due to the disability-related needs of a family member. Although the ADA prohibits discrimination based on association with a disabled individual, it does not require accommodations in order to protect an employee’s family member with a disability from potential exposure. Employers may choose to do so, however, but must be consistent in extending such flexibility in order to avoid other discrimination claims.

Q: May Employers Exclude Older Workers At Increased Risk Of Severe Illness From The Workplace? (Added 7/13/20)

A: No. Although older workers may be at a higher risk of severe illness from COVID-19, employers may not involuntarily exclude employees from the workplace due to their age.

Q: Are Employers Required To Accommodate Older Workers At Increased Risk Of Severe Illness? (Updated 9/10/20)

A: No. Older workers do not have a right to reasonable accommodations based on age. The EEOC notes that employers may choose to provide flexibility to workers age 65 and older, but not those age 40-65, without violating the ADEA. In addition, if employers provide such flexibility to other workers, they cannot refuse to provide such flexibility to older workers because of their age. Older workers with underlying medical conditions may be entitled to reasonable accommodation under the ADA.

Q: May Employers Exclude Pregnant Workers From The Workplace? (Added 7/13/20)

A: No. As with older workers, employers may not involuntarily exclude pregnant employees from the workplace.

Q: Are Employers Required To Accommodate Pregnant Workers? (Added 7/13/20)

A: Maybe. Pregnant employees may be entitled to accommodations under the ADA if they have pregnancy-related medical conditions that increase their risk of severe illness from COVID-19. Additionally, under the Pregnancy Discrimination Act, an employer must provide job modifications like telework, scheduling or assignment changes, or leave to pregnant employees if such job modifications are provided to other employees similar in their ability or inability to work.

Q: What About Employees With Caregiving Responsibilities? (Added 7/13/20)

A: No accommodations are required for those with caregiving needs, although employers should try to work with employees to be flexible. The EEOC warns employers about possible sex discrimination in granting telework, modified schedules or other benefits to employees with school-age children due to school closures during the pandemic. Employers should not make gender-based assumptions about who may have caretaking responsibilities.

Q: What Are An Employer’s Reasonable Accommodations Obligations for COVID-19 Long-Haulers? (Added 6/2/21)

A: Many individuals are “long haulers,” meaning that they are experiencing lingering symptoms of COVID-19 – a condition known as Post-acute COVID-19 Syndrome or Long COVID. Such people may meet the ADA definition of having a “disability”: a physical or mental impairment that substantially limits one or more major life activities. And if so, they would be entitled to reasonable accommodations to enable them to perform the essential functions of their jobs. On this issue, the Department of Labor’s Job Accommodations Network offers the following guidance from the perspective of long haulers.

Long haulers are encouraged to ask employers for an accommodation, whether or not they technically meet the disability definition, since employers are free to provide accommodations even if not required. Such requests would be subject to the normal interactive process described above. Because long-haul symptoms may eventually resolve, accommodations may be provided on a temporary basis. JAN reiterates that employers need not remove essential job functions, lower production standards, provide personal need items (e.g. hearing aids or wheelchairs), or experience an undue hardship. They also need not provide the employee’s preferred accommodation as long as the provided accommodation is effective.

If the employer denies the accommodation, JAN suggests that the employee ask why (and we suggest that the employer explain why when denying the request). If the employer believes there is no disability, the employee could provide additional medical information to establish one. If the employer believes the requested accommodation is an undue hardship, the employee could propose other accommodations (although we suggest that employers explore all possible reasonable accommodations before denying a request altogether). If the employee believes the denial was not valid or the employer refuses to explain the denial (we do not advise employers to do that), JAN suggests that the employee go up the chain of command, file a grievance if a union member, or file a complaint with the federal Equal Employment Opportunity Commission or state fair employment practices agency, which are charged with enforcement of disability statutes.

(We note that, although the DOL is offering this guidance documents, it does not have enforcement authority for the ADA).

EMPLOYEES WHO HAVE BEEN EXPOSED TO COVID-19

Q: What Is The CDC’s Rule On Essential Workers’ Ability To Work Following Exposure? (Updated 8/18/21)

A: If the worker is fully-vaccinated, the CDC does not require them to quarantine following exposure to COVID-19. They should be tested 3-5 days following exposure, self-monitor for symptoms and wear a mask during the next 14 days (they can stop with the mask if they test negative), and if symptoms develop, they should be removed from the workplace, sent for testing and medical treatment, and required to isolate in accordance with CDC guidelines.

As to unvaccinated workers, in order to ensure continuity of operations of essential functions, the CDC has issued guidance that critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community. The CDC states that such exposed workers may continue to work, but emphasized that this should be used only as “a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety.” If employers choose to require those employees to work, the following actions should be taken:

 

  • Self-Screen: Employees should self-screen at home prior to reporting to work. They should not report to work if they have COVID-19 symptoms, a temperature equal to or higher than 100.4 oF, or are waiting for the results of a viral test.
  • Pre-Screen: Employers should conduct an on-site symptom assessment, including a temperature check, prior to each work shift. Ideally, this assessment should happen before the individual enters the facility.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

Obviously, if an employee starts showing symptoms of COVID-19, they must immediately be removed from the workplace and quarantined. The employer must perform a deep-cleaning of the workspace, and other employees who have come into contact with that employee would be considered exposed and subject to the actions above.

The CDC recommends that critical infrastructure employers reduce the need to reintegrate exposed critical infrastructure workers by:

  • Identifying and prioritizing job functions essential for continuous operation,
  • Cross-training employees to perform critical job functions so the workplace can operate even if key employees are absent, and
  • Matching critical job functions with other equally skilled and available workers who have not experienced an exposure to a person with confirmed COVID-19.

Q: What If An Employer Requires Employee(s) To Self-Quarantine Because Of Exposure To COVID-19? (Updated 8/18/21)

A: For those non-critical infrastructure workers who are unvaccinated or not fully-vaccinated, the CDC recommends that employees who have been exposed should quarantine for 14 days following exposure, but updated its guidance on December 2, 2020 to acknowledge that individuals may be released from quarantine earlier, as permitted by local public health officials, as long as they remain asymptomatic: after 7 days with a negative test, or 10 days without a test. Those individuals should continue to self-monitor for symptoms, wear a face covering, and observe other social distancing and infection prevention protocols during the remainder of the 14-day incubation period after exposure. If an employer imposes such a quarantine requirement, the 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.

Note that if the employee’s health care provider advises self-quarantine because of possible exposure, the employee will be entitled to Emergency Paid Sick Leave under the FFCRA, if applicable.

Q: What If The Government Requires Quarantine? (Updated 3/17/21)

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 FFCRA also encourages coverage for COVID-19-related reasons.

State and local sick leave laws may allow use for quarantines. Paid family leave benefits laws may also apply.

If applicable and if the employer chooses, the FFCRA extensions under ARPA also provide Emergency Paid Sick Leave (EPSL) that may be used for this purpose. Notably, the DOL’s FFCRA regulations provide that governmental shut-down or stay-at-home orders constitute a quarantine order under the FFCRA for purposes of accessing EPSL, as do governmental quarantine advisories following travel to certain “hot spots.” The right to such EPSL is not automatic, however. The employee must be unable to perform their work because of the order to be eligible to use EPSL, and the employer must agree to the use of EPSL. See the ARPA Q&As above for more information.

The DOL’s regulations provide that if the business is closed or the employee is laid off because of the shut-down or stay-at-home order, EPSL would not be available to the employee, although they may be eligible for unemployment insurance benefits. This particular provision was struck down by a federal court on August 3, 2020, but then reinstated by the DOL in its revised regulations. Please see further details at the beginning of the FFCRA section above.

Q: In The Event Of A Quarantine, How Are Employees Paid? (Updated 3/17/21)

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 may receive Emergency Paid Sick Leave if their employers are covered under the FFCRA and have chosen to permit use of EPSL under the ARPA’s extensions to FFCRA. See the ARPA Q&As above for more information.

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.

EMPLOYEE REFUSAL TO WORK

Q: Can An Employee Refuse To Work Because Of Concerns About Workplace Safety? (Updated 4/9/20)

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. Note that if an employee is staying home in compliance with a governmental advisory, such as for older workers or those with underlying health conditions, they may be eligible for Paid Sick Leave under the Families First Coronavirus Response Act.

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.

The Department of Labor has specifically reminded employers that they cannot retaliate against employees who express concerns about workplace safety during this COVID-19 pandemic.

EMPLOYEES TESTING POSITIVE FOR COVID-19

Q: What Should An Employer Do If An Employee Tests Positive For COVID-19? (Updated 8/18/21)

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 in home isolation for in accordance with CDC recommendations, or until they have been cleared to return to work by their health care provider. The CDC states that infected individuals with symptoms may be released from isolation after 10 days if: (1) at least 10 days have passed since the onset of symptoms; (2) they are fever-free for at least 24 hours without the use of medication; and (3) other symptoms have improved. Infected individuals without symptoms may be released from isolation after 10 days from the date of the positive test. The employees will be entitled to Paid Sick Leave under the Families First Coronavirus Response Act.

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, which is the incubation period for COVID-19. 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 quarantine period (14 days, unless the Department permits 7 days with a negative test and 10 days without a test) for those individuals who are unvaccinated or partially-vaccinated, with self-monitoring and infection protocols for the full 14-day period. Fully-vaccinated individuals need not quarantine unless they experience symptoms, but should undergo testing 3-5 days following contact, and wear a mask for 14 days unless they test negative.

There are also reporting requirements. Employers should inform the Department of Health and CDC of a positive test, and may disclose the name of the infected employee. In cases of work-related infections, there may also be reporting and/or recording requirements under the Occupational Safety and Health Act, as discussed further below.    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 they were 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 8/18/21)21)

Under CDC guidance, fully-vaccinated individuals need not quarantine if they are exposed to COVID-19. They should undergo testing 3-5 days following contact, and wear a mask for 14 days unless they test negative. They should also continue to self-monitor for symptoms during the next 14 days. If they develop symptoms, however, they should be handled in the same way as unvaccinated or not fully-vaccinated employees.

If an unvaccinated or partially-vaccinated 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 the health care provider advises that they self-quarantine, they will be entitled to Emergency Paid Sick Leave under the Families First Coronavirus Response Act, if it applies to their employer.

If an unvaccinated or partially-vaccinated 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 should 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? (Updated 3/17/21)

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. A particularly severe and long-lasting case of COVID-19, or the existence of long-term effects (i.e. “Long COVID” or COVID-19 “long-haulers”), 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 6/2/21)

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.

The employee will be entitled to Emergency Paid Sick Leave under the FFCRA, if applicable, running concurrently with FMLA. No other 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 FFCRA’s EFMLA paid leave mandate (for school or child care closures) does not apply to regular FMLA leave, including for the illness of the employee or family member.

Notably, the DOL has made clear that leave taken to avoid exposure to COVID-19 is not covered by FMLA. We note, however, that an employee may, in fact, have an underlying serious health condition that may require them to avoid exposure to COVID-19, and therefore might be entitled to FMLA leave on that basis.

Q: What Other Leave Is Available To Sick Employees? (Updated 3/17/21)

A: Some states and local jurisdictions have passed laws or instituted Executive Orders requiring employers to provide paid leave or family leave benefits specific to COVID-19. In addition, a number of states and local jurisdictions have laws requiring employers to provide general 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 American Rescue Plan’s extension to FFCRA, employers with fewer than 500 employees may choose to provide sick employees with ten days of Emergency Paid Sick Leave and/or paid EFMLA leave for COVID-19 through September 30, 2021, 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? (Updated 7/13/20)

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 be difficult to make this determination as community spread becomes more prevalent. Some states are presuming that COVID-19 was contracted in the workplace.

Q: Is An Employee Contracting COVID-19 At Work A Recordable Event Under The Occupational Safety And Health Act (OSHA)? (Updated 7/13/20)

A:According to OSHA, employers must record confirmed cases of COVID-19 if they are work-related and meet the criteria for recording, such as medical treatment beyond first aid or days away from work. Such illnesses must be recorded on OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Report). OSHA has issued an enforcement guidance providing that all employers “must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.”

OSHA states that employers, especially small ones, should not be expected to undertake extensive medical inquiries. Rather, it is sufficient in most circumstances for the employer: (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.

OSHA states that the following types of evidence are relevant to the determination:

  • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

Q: Is An Employee Contracting COVID-19 At Work A Reportable Event Under The Occupational Safety And Health Act (OSHA)? (Added 11/12/20)

A: OSHA has issued FAQs regarding the reporting of work-related COVID-19 hospitalizations and fatalities.

With regard to hospitalizations, employers must report (within 24 hours) those that occur within 24 hours of a work-related incident. In the context of COVID-19, OSHA states that the work-related exposure to COVID is the triggering “incident” and thus is reportable if the hospitalization occurs within 24 hours of such exposure. The employer must report such hospitalization within 24 hours of knowing both that the employee has been hospitalized and that the reason for the hospitalization was a work-related case of COVID-19.

As for fatalities, employers must report any that occur within 30 days of the work-related incident, meaning the work-related exposure to COVID-19. The employer must report the fatality within eight hours of knowing both that the employee has died, and that the cause of death was a work-related case of COVID-19.

OSHA clarifies that these limitations only apply to reporting; employers who are required to keep illness and injury records must still record any work-related hospitalizations or fatalities of COVID-19 that occur outside of the reporting period.

Q: When May An Employee Who Tested Positive With Symptoms Return To Work? (Updated 8/18/21)

A: The employee should follow their health care provider’s instructions with regard to when they can return to work, which will likely track the CDC’s recommendations, as summarized below.  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’s Guidance on Discontinuation of Isolation for Persons With COVID-19 Not In Healthcare Settings  recommends that individuals with a positive diagnosis and symptoms continue isolation (and thereby not return to work) until they are fever-free for at least 24 hours without the use of fever-reducing medicines, there has been an improvement in symptoms, and at least 10 days (up to 20 for those with severe illness) have passed since symptoms first appeared.

Of significance, the CDC suggests that there may be immunity for up to three months following infection with COVID-19. Specifically, the CDC states that those who have had COVID-19 do not need to quarantine or get tested again following close contact with an infected individual for a period of three months, unless they have symptoms. Otherwise, those who have been in close contact and who have not been fully-vaccinated should stay at home for a quarantine period (7 days with a negative test or 10 days without a test, with continued self-monitoring and infection prevention protocols for the remainder of the 14-day incubation period) following their last contact with the infected individual and self-monitor for symptoms. Moreover, the CDC expressly states that (unvaccinated) individuals should quarantine even if they test negative, as symptoms may appear up to 14 days after exposure.

The CDC had previously also recommended a test-based strategy for being released to work. However, it no longer generally recommends this since studies have shown that the vast majority of those who test negative also meet the criteria of the symptom-based strategy. The test-based strategy may still be used for those who are severely immunocompromised, in consultation with infectious disease experts. If testing is being used, the individual must be fever-free without the use of fever-reducing medicines, there has been an improvement in symptoms, and they have tested negative from at least two consecutive specimens collected 24 or more hours apart.

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.

An employer may require a doctor’s note to verify that an employee is healthy and able to return to the workplace, although such documentation may not be available in a timely manner during periods of community transmission, when health care providers may be extremely busy. 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). If an employee has been in quarantine, however, their absence should well exceed this number of days.

Q: When May An Employee Who Tested Positive Without Symptoms Return To Work? (Updated 8/18/21)

A: The employee should follow their health care provider’s instructions with regard to when they can return to work, which will likely track the CDC’s recommendations, as summarized below.  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’s Guidance on Discontinuation of Isolation for Persons With COVID-19 Not In Healthcare Settings  recommends that individuals with a positive diagnosis and symptoms continue isolation (and thereby not return to work) until they are fever-free for at least 24 hours without the use of fever-reducing medicines, there has been an improvement in symptoms, and at least 10 days (up to 20 for those with severe illness) have passed since symptoms first appeared.

Of significance, the CDC suggests that there may be immunity for up to three months following infection with COVID-19. Specifically, the CDC states that those who have had COVID-19 do not need to quarantine or get tested again following close contact with an infected individual for a period of three months, unless they have symptoms.

The CDC had previously also recommended a test-based strategy for being released to work. However, it no longer generally recommends this since studies have shown that the vast majority of those who test negative also meet the criteria of the symptom-based strategy. The test-based strategy may still be used for those who are severely immunocompromised, in consultation with infectious disease experts. If testing is being used, the individual must be fever-free without the use of fever-reducing medicines, there has been an improvement in symptoms, and they have tested negative from at least two consecutive specimens collected 24 or more hours apart.

An employer may require that an employee who has taken FMLA leave for their 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.

An employer may require a doctor’s note to verify that an employee is healthy and able to return to the workplace, although such documentation may not be available in a timely manner during periods of community transmission, when health care providers may be extremely busy. 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). If an employee has been in quarantine, however, their absence should well exceed this number of days.

Q: What If A Temporary Staffing Agency Employee Or Contractor Tests Positive For COVID-19? (Added 4/15/20)

A: Temporary staffing agencies and contractors may notify the host employer if any assigned worker has COVID-19. The agency or contractor should disclose the name of the infected worker, as that information may be important for exposure, cleaning and mitigation purposes.

FURLOUGHS, LAYOFFS, AND CLOSURES

Q: What Are Considerations For Employers Who Need To Implement A Reduction In Force (“RIF”)? (Updated 6/2/21)

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. In addition, employees should not be selected for layoff because they have used FMLA leave or other protected leave (including FFCRA leave), or complained about workplace safety, or engaged in protected concerted activity regarding terms and conditions of employment (including in connection with pandemic-related actions).

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 at a single site of employment during any 30 day period, 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 Worker Adjustment and Retraining Notification (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. Employers with 100 or more employees, excluding part-time employees, are subject to WARN’s requirements. 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. Some states have made COVID-19-related changes to their mini-WARN Acts, however.

Employees who are terminated as part of a RIF are not are not able to take Emergency Paid Sick Leave or expanded FMLA leave under the FFCRA.

Q: What Must Employers Be Mindful Of If They Furlough Employees? (Updated 8/5/20)

A: A furlough is a temporary leave of absence, with the intention of returning the employee to work. It can be for certain day(s) in a week, or for entire weeks or more at a time.

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. An employer may also reduce the hourly rate of non-exempt employees as long as they receive at least the applicable minimum wage rate. State law may require a certain amount of notice of any change in pay rate.

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.

Notably, the DOL previously stated that employees on furlough are not able to take Emergency Paid Sick Leave or expanded FMLA leave under the FFCRA. This provision was thrown out by a federal court on August 3, 2020. Please see further details at the beginning of the FFCRA section above.

Q: What Notice Must Be Provided Under WARN? (Added 5/7/20)

A: Under the Worker Adjustment and Retraining Notification Act (WARN), employers must provide 60 days’ notice of any employment reductions to (1) non-Union employees affected by the employment action, (2) the state’s dislocated worker unit, (3) the chief elected official of the unit of local government in which the closing or mass layoff is to occur, and (4) representative(s) of affected employees (in the event the work force is unionized, this will be the employee’s exclusive bargaining representative).

Q: Are There Exceptions To WARN For Employment Reductions In Which 60 Days’ Notice Is Not Feasible? (Updated 6/2/21)

A: Yes, but this depends on the specific circumstances of the employment action, and operates as an exception to the 60 days’ notice requirement, and not the remainder of the obligations imposed by the Worker Adjustment and Retraining Notification Act (WARN). Employers implementing an employment action triggering WARN obligations need not give 60 days’ notice if the action is caused by an unforeseeable business circumstance, a natural disaster, or if a site of employment closes after a faltering company fails to obtain capital or business it had sought which was necessary to maintain operations. These inquiries are very fact specific, as noted by the DOL in its Frequently Asked Questions resource on WARN and COVID-19.

Many employers may not issue WARN notices, despite meeting otherwise meeting WARN’s requirements because, under the unforeseeable business circumstances exception, the need for the layoff or shutdown was not reasonably foreseeable 60 days’ in advance due to the sudden and dramatic onset of COVID-19. The application of any one of these exceptions, however, does not eliminate employer’s need to issue WARN notices if they otherwise meet WARN’s requirements. Although 60 days’ notice may not have been required, employers must still send WARN notices for employment actions covered by one of WARN’s exceptions as soon as practically possible, even if they are issued after the employment action occurs. The notice should include a brief statement of the reason for giving less than 60 days’ notice.

Note that some state mini-WARN laws do not contain the same exceptions as under federal law.

Q: How Do Employers Know If They Meet The Foreseeable Business Circumstances Exception? (Added 5/7/20)

A: As noted by the DOL in its Frequently Asked Questions resource on WARN and COVID-19, this is a very fact specific inquiry determined on a case-by-case basis. The Department of Labor’s WARN regulations provide:

The “unforeseeable business circumstances” exception… applies to plant closings and mass layoffs caused by business circumstances that were not reasonably foreseeable at the time that 60-day notice would have been required.

(1) An important indicator of a business circumstance that is not reasonably foreseeable is that the circumstance is caused by some sudden, dramatic, and unexpected action or condition outside the employer’s control. A principal client’s sudden and unexpected termination of a major contract with the employer… and an unanticipated and dramatic major economic downturn might each be considered a business circumstance that is not reasonably foreseeable. A government ordered closing of an employment site that occurs without prior notice also may be an unforeseeable business circumstance.

(2) The test for determining when business circumstances are not reasonably foreseeable focuses on an employer’s business judgment. The employer must exercise such commercially reasonable business judgment as would a similarly situated employer in predicting the demands of its particular market. The employer is not required, however, to accurately predict general economic conditions that also may affect demand for its products or services.

Q: Should Employers Continue To Monitor Layoffs For Potential WARN Obligations? (Added 5/7/20)

A: Yes. As noted by the DOL in its Frequently Asked Questions resource on WARN and COVID-19, many employers did not issue WARN notices because they did not intend layoffs to last longer than six months. WARN provides that a layoff of more than six months that at the outset was not expected to last six months, is not subject to immediate WARN notices if: (1) the extension beyond six months is caused by business circumstances not foreseeable at the time of the initial layoff; and (2) notice is given at the time it becomes reasonably foreseeable that a layoff beyond six months will be required. A layoff extending beyond six months for any other reason is treated as an employment loss from the date the layoff or furlough starts. Accordingly, employers should not wait until 60 days prior to the end of the six month period to issue WARN notices. They must continue to monitor the layoff and analyze the likelihood of whether the layoff will last beyond six months. As soon as it becomes reasonably foreseeable that the layoff may extend beyond six months, employers should issue WARN notices as soon as possible to avoid WARN liability.

Q: Is There A Distinction Under WARN Between Laying Off Workers And Furloughing Them? (Added 5/7/20)

A: No, there is no distinction between a layoff and a furlough under WARN.

Q: Can Employers Escape WARN’s Requirements By Making Multiple Small Layoffs? (Added 5/7/20)

A: Some employers are taking a step-by-step approach in conducting reductions in force, attempting to lay off as few workers as possible at a time. In determining whether a plant closing or mass layoff triggers WARN notification requirements, covered employers must look forward 90 days and backwards 90 days from each employment loss. Separate employment losses that do not otherwise meet WARN’s requirements aggregate over a 90 day period, and if the losses over those 90 days involve the requisite number of employees, WARN requirements are triggered as to all of the employees suffering an employment loss and apply as of the date of the first employment action. Employment actions will not be aggregate if the employer is able to prove they are the result of separate and distinct causes.

Employers needing to make multiple layoffs as this crisis continues should closely track layoffs across the 90 day aggregation period and consult with counsel to determine whether WARN is triggered.

Q: May Employers Send WARN Notices By Email? (Added 5/7/20)

A: The regulations implementing the WARN Act state that: “Any reasonable method of delivery…

which is designed to ensure receipt of notice” is an acceptable form of notice. See 20 § C.F.R. 639.8. This includes e-mail. A WARN notice sent via email must still be specific to the individual employee, and comply with all requirements of the WARN Act statute and regulations regarding written notifications.

Q: What Are The Extended Deadlines For COBRA Notices? (Added 5/7/20)

A: Under normal circumstances, the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) provides that employees must receive notice of their right to elect continued healthcare coverage following a triggering event, such as a termination of employment or a certain reduction in hours. They then have 60 days in which to elect such coverage, and 45 days following election to pay the premium. The DOL has announced a final rule, however, that extends these deadlines beyond the “Outbreak Period,” which is defined as between March 1, 2020 and 60 days after the National Emergency has been declared at an end. Thus, the 60-day period to elect coverage will only begin at the end of this Outbreak Period. The DOL has provided additional guidance in a Q&A resource.

PLANNING FOR COVID-19

Q: For Unionized Employers, What Bargaining Obligations Exist When Developing Response Plans? (Updated 6/2/21)

A: Employers should begin by examining their collective bargaining agreement. The management rights clause, or provisions regarding leave, telework, vaccinations, 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
  • Vaccine mandates

Notably, the NLRB’s Office of General Counsel issued an advice memorandum, Mercy Health General Campus, in which it stated that, in COVID-19 emergency situations, employers should be permitted to act unilaterally provided the unilateral action is “reasonably related to the emergency situation.” However, after the unilateral decision is implemented, the employer “must negotiate over the decision (to the extent there is a decisional bargaining obligation and its effects within a reasonable time thereafter.”

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? (Updated 8/18/21)

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.  If the employer is requiring or recommending the vaccine, this should be made clear, along with any incentives, reasonable accommodations for disability or religion, and other pertinent matters, as discussed above in the Vaccine section. 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 FFCRA may need to be addressed in sick leave policies for covered employers, if such employers choose to extend such leave through September 30, 2021. 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: What Discrimination or Harassment Concerns Should Employers Be Thinking About? (Updated 6/2/21)

A: There has been a significant increase in anti-Asian incidents generally, based on the fact that COVID-19 began in China. Employers should ensure that employees understand that fear of COVID-19 should not be misdirected against individuals because of a protected characteristic. The EEOC offers various resources, including policy tips and checklists, to help employers with that effort.

In addition, in implementing policies and protocols to deal with the COVID-19 pandemic, employers must take care that such implementation does not impact certain protected classes more than others. The EEOC has specifically noted the possibility of disparate impact by a vaccine mandate on certain protected classes, for example.

Q: What Happens If Employees Are Called Up For National Guard Duty Due To COVID-19? (Added 4/15/20)

A: As reported in the media, the National Guard has been called out to assist with certain COVID-19 related activities. The DOL’s Veterans’ Employment and Training Service offered Frequently Asked Questions regarding COVID-19-related National Guard service under the Uniformed Services Employment and Reemployment Rights Act (USERRA). VETS noted that there are no new rights and obligations under USERRA, but explained those rights and obligations in light of COVID-19.

According to VETS, USERRA’s employment and reemployment protections apply if an employee is called to National Guard duty under federal – but not state – authority. (State law protections may apply, however). The authority can change during the employee’s service.

VETS notes that an employee may still be laid off or furloughed upon return from their military (including National Guard) service if they would have been subject to that action unrelated to their service.

Employers are cautioned that they cannot delay reemployment based on a concern that the employee may have been exposed to COVID-19 during their service in a COVID-19 affected area. If the employee has been exposed to or has become infected with COVID-19, the employer must make reasonable efforts in order to qualify the returning employee for their proper reemployment position. According to VETS, these efforts can include temporarily providing paid leave, remote work, or another position during a period of quarantine. While VETS does not address whether unpaid leave would be reasonable, other agencies would apparently allow for leave that is unpaid if paid leave is otherwise unavailable.

Q: Do School Closures Impact Payment Obligations? (Updated 6/2/21)

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 may be eligible for Emergency Paid Sick Leave and paid expanded FMLA leave under the FFCRA for this purpose through September 30, 2021, if employers choose to provide such leave. The DOL has specifically stated that regular FMLA is not available for school or child care closures, however.

Q: Is The Small Business Administration Offering Any Assistance To Impacted 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? (Updated 6/2/21)

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.

The CARES Act has significantly expanded UI benefits available to employees impacted by COVID-19, and these benefits have been extended through September 6, 2021, as discussed above in the ARPA section. The DOL has issued guidance on such expanded benefits.

RETURNING TO THE WORKPLACE

Q: What Guidance Have OSHA And The CDC Provided On Returning To The Workplace? (Added 7/13/20)

A: Both agencies have issued both general and industry-specific guidance and other resources of relevance to the workplace, which are linked in the Federal Agency Guidance section below. Most recently of general interest:

The CDC’s considerations for reopening include the following, which are further detailed in questions below: Create a COVID-19 workplace health and safety plan; Before resuming operations, check the building to see if it’s ready for occupancy; Identify where and how workers might be exposed to COVID-19 at work; Implement engineering controls; Implement administrative controls; and Educate employees and supervisors about steps they can take to protect themselves at work.

Q: What Are OSHA’s Three Phases Of Reopening? (Added 7/13/20)

A: OSHA issued a “Guidance on Returning to Work” for non-essential businesses. The guidance sets forth three phases for reopening, and OSHA states that “During each phase of the reopening process, employers should continue to focus on strategies for basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training.” The phases are as follows:

Phase 1: Businesses should consider making telework available, when possible and feasible with business operations. For employees who return to the workplace, consider limiting the number of people in the workplace in order to maintain strict social distancing practices. Where feasible, accommodations (i.e., flexibilities based on individual needs) should be considered for workers at higher risk of severe illness, including elderly individuals and those with serious underlying health conditions. Businesses should also consider extending special accommodations to workers with household members at higher risk of severe illness. Non-essential business travel should be limited.

Phase 2: Businesses continue to make telework available where possible, but non-essential business travel can resume. Limitations on the number of people in the workplace can be eased, but continue to maintain moderate to strict social distancing practices, depending on the type of business. Continue to accommodate vulnerable workers as identified above in Phase 1.

Phase 3: Businesses resume unrestricted staffing of work sites.

Q: Has A COVID-19 Workplace Health And Safety Plan Been Created? (Added 7/13/20)

A: The CDC refers employers to its CDC Interim Guidance for Businesses and Employers for guidelines and recommendations on creating a plan. Such plan should:

  • Be specific to your workplace,
  • Identify all areas and job tasks with potential exposures to COVID-19, and
  • Include control measures to eliminate or reduce such exposures.

Q: Before Resuming Operations, Has The Building Been Checked To See If It’s Ready For Occupancy? (Added 7/13/20)

A: The CDC recommends making sure the ventilation systems are operating properly and increasing the circulation of outdoor air as much as possible. In addition, employers should check for hazards such as mold growth, pest control, and stagnant water systems.

Q: Where And How Might Workers Be Exposed To COVID-19 At Work? (Added 7/13/20)

A: Employers should conduct a hazard assessment, and identify areas where employees may come into close contact. They should also establish communication plans that include all employees, as well as contractors, as necessary to prevent transmission.

Q: What Engineering Controls Can Be Implemented? (Added 7/13/20)

A: The CDC and OSHA recommend social distancing and infection prevention actions such as:

  • Moving furniture and workstations
  • Installing barriers
  • Using markers to show where people should stand
  • Improving ventilation by increasing airflow, filtration, and use of outside air
  • Replacing high-touch communal items, such as coffee pots, water coolers, and bulk snacks, with alternatives such as pre-packaged, single-serving items
  • Consider using ultraviolet germicidal irradiation (UVGI) as a supplement to help inactivate the virus

Q: What Administrative Controls Can Be Implemented? (Updated 8/18/21)

A: The CDC and OSHA propose the following, as adapted for fully-vaccinated individuals.

  • Those with symptoms or with sick family members should notify their supervisor and stay home. (We note, however, that under CDC’s guidance for fully-vaccinated individuals as adopted by OSHA, those individuals need not quarantine following exposure, which would include contact with sick family members). Enhanced cleaning and disinfection of their workspace should take place.
  • Consider conducting daily symptom and temperature screening. (However, we believe that screening is not required for fully-vaccinated employees).
  • Stagger shifts and break times. A new suggestion is to have employees and visitors phone from their cars to enable them to enter at staggered times.
  • In accordance with CDC guidelines, clean and disinfect high touch surfaces, like work stations, keyboards, telephones, handrails, copiers/printers and doorknobs. Provide cleaning and disinfection materials, including wipes.
  • Prohibit handshakes, hugs, and fist bumps (except as to fully-vaccinated individuals)
  • Limit use and occupancy of elevators to maintain social distancing of at least 6 feet
  • Incentivize forms of transportation that minimize close contact, such as offering reimbursement for parking or single-occupancy rides
  • Require employees who are not fully vaccinated to wear a cloth face covering to cover their nose and mouth in all areas of the business. If in an area of substantial or high transmission, however, require all employees regardless of vaccination status to wear a mask/face covering in indoor public settings.
  • Consider asking or requiring visitors and guests who are not fully vaccinated to wear face coverings (as well as to not enter the building if sick and to stay 6 feet away from employees). If in an area of substantial or high transmission, however, require all visitors and guests regardless of vaccination status to wear a mask/face covering in indoor public settings.

Q: May Employers Require Employees To Sign A Liability Waiver Before Returning To Work? (Added 7/13/20)

A: Generally not. Workers’ compensation is the remedy for workplace injuries and illnesses, including COVID-19, and workers’ compensation rights cannot be waived.

Q: What Education Should Be Provided To Employees and Supervisors? (Added 7/13/20)

A: Training on a variety of infection prevention, response, and mitigation topics should be provided and should be easily understood, in the preferred language of non-English-speaking workers. Post signs on hand hygiene, COVID-19 symptoms, and respiratory etiquette, available from the CDC.

Q: What Should Employers Do About Ventilation In the Workplace? (Added 12/3/20)

A: OSHA has released a COVID-related safety alerts on ventilation in the workplace. OSHA recommends that employers work with a heating, ventilation, and air conditioning (HVAC) professional to optimize building ventilation. In addition, OSHA offers a number of tips, including the following:

  • Ensure all HVAC systems are fully functional, especially those shut down or operating at reduced capacity during the pandemic.
  • Remove or redirect personal fans to prevent blowing air from one worker to another.
  • Use HVAC system filters with a Minimum Efficiency Reporting Value (MERV) rating of 13 or higher, where feasible.
  • Increase the HVAC system’s outdoor air intake. Open windows or other sources of fresh air where possible.
  • Be sure exhaust air is not pulled back into the building from HVAC air intakes or open windows.
  • Consider using portable high-efficiency particulate air (HEPA) fan/filtration systems to increase clean air, especially in higher-risk areas.
  • Make sure exhaust fans in restrooms are fully functional, operating at maximum capacity, and are set to remain on.

FEDERAL AGENCY GUIDANCE ON COVID-19 (Updated 3/17/21)

Centers for Disease Control and Prevention (CDC) (Updated 3/17/21)

DOL Occupational Safety and Health Administration (OSHA) (Updated 7/19/21)

DOL Employment and Training Administration (DOLETA)

DOL Veterans’ Employment and Training Service (VETS)

DOL Veterans’ Employment and Training Service (VETS)

Presidential Memoranda (Added 9/10/20)

Treasury Department (Updated 9/10/20)

Food and Drug Administration (Added 12/18/20)