Best Practices For Employers During the COVID-19 Crisis

On April 1, 2020, two new laws intended to address the COVID-19 crisis came into effect.  The Emergency Family and Medical Leave Expansion Act (“EFMLA”) and the Emergency Paid Sick Leave Act both provide workers with government funded paid leave when caring for a family member impacted by the Coronavirus or they themselves become sick.   Below is a summary of these important new laws along with some additional information to help employers meet their workplace obligations to their employees.

 

Emergency Family & Medical Leave Expansion Act

Emergency Paid Sick Leave Act

Applicability 

Employers with fewer than 500 Employees.

Eligibility

Applies to Employees employed more than 30 days. 

Applies to all Employees regardless of hire date.

Reasons for Leave

To care for minor son or daughter due to school or child care facility closure as a result of the public health emergency. The child does not need to be ill. 

The EFMLA does not diminish the standard FMLA provisions. 

Employee being quarantined or has symptoms of CV-19; or

employee caring for individual who is quarantined or has symptoms of CV-19; or 

employee caring for minor son or daughter that is ill or requires care due to school or child care facility closed due to public health emergency

Benefits to Employees

The first ten business days are unpaid, subject to election by the employee to use PTO. 

The employee is then to have leave for up to 12 weeks and be paid 2/3 of their regular salary up to $200 a day up to a $10,000 maximum.

Employee is to be paid for the average number of hours worked over two-week period (80 hours to full time employees). 

If employee is quarantined or ill, then the rate of pay is their regular rate up to $511 a day and a maximum of $5,110.  If employee takes leave to care for another, then the rate of pay is 2/3 their regular rate up to $200 a day and a $2,000 maximum. 

Employer

Obligations

Employer must post notice of leave rights in conspicuous place

Employees must be restored to their prior position within 12 weeks of conclusion of leave unless their position has been eliminated due to economic or operating conditions. 

If the position should be restored within 12 months, the employer should make reasonable efforts to reinstate employee in restored position.

Employers cannot take an adverse action toward an employee based on their request to take leave. 

Misc. Provisions

Employer can ask for documentation justifying qualifying legal basis for leave.

Employer can ask for documentation justifying need for leave. 

Hours should be calculated based on the employee’s normal working hours. 

Employee can elect to use PTO before leave. 

Act doesn’t diminish any State leave laws, existing employment contract or collective bargaining agreement rights. 

Tax Credits to Employer

Dollar-for-dollar tax credit against employer’s FICA tax obligations for all leave benefits paid by employer to be .

 

ADDITIONAL APPLICABLE LAWS

 

  • WARN Act: Applies to Companies with 100 or more employees.   Requires 60-days notice when terminating or laying off more than 50 full-time employees or reducing hours more than 50% or more for 6 months or more. Exceptions to notice can be for unforeseen business circumstances, such as unexpected business closings.  

 

  • HIPAA: Employers must take reasonable efforts to limit the dissemination of protected health information of their employees. 

 

  • OSHA: Employers have a general duty to furnish a place of employment free from hazards that cause or lead to serious physical harm. Employers should assess the risk to their employees within the context of their particular working environment and implement appropriate and applicable protective measures to satisfy these obligations. Note that mitigation strategies may impose additional obligations.  Ex. if sterilization strategies involve cleansers requiring respirators for safe use, additional protection standards would apply (ex. Regarding respirator maintenance).

 

 

PRACTICE TIPS

 

  • MY BUSINESS WAS DIRECTED TO CLOSE AND THE WORKFORCE CANNOT WORK REMOTELY.  ARE THE EMPLOYEES ELIGIBLE FOR EFMLA BENEFITS?  
  • No.   Upon receiving notice from the State to close your business, your employees are no longer able to request paid leave under the EFMLA. Employees who have already requested leave as of the ordered closure remain eligible in accordance with all applicable programs to which they are entitled to benefits.  

 

 

  • I AM AN ESSENTIAL BUSINESS AND MY WORKFORCE CANNOT ACCOMPLISH ESSENTIAL FUNCTIONS REMOTELY.    

 

    • OSHA requires that you furnish a safe work environment.   Compliance determined on a case-by-case basis considering the work environment.   Establish and publish CV-19 workplace protocols. First and foremost, employees should be prohibited from coming to workplace if they or anyone they live with is experiencing any CV-19 symptoms.  Staff that does not need to be on site should work from home. Essential onsite staff should practice social distancing– where not possible, employer should provide face masks and gloves to employees and place sanitizer strategically throughout work environment.  In an office setting, require workers to keep doors closed. Limit the number of employees that can congregate in communal areas (break rooms, copy rooms etc.) at one time (based upon the size of the space). Require staff to wipe down equipment and machinery after operating.  Prohibit face to face meetings whenever possible—use videoconferencing instead.  

 

  • AN EMPLOYEE WORKING FROM HOME REQUESTS PAID LEAVE BECAUSE HIS CHILD’S SCHOOL CLOSED DUE TO COVID-19.   CAN I REQUIRE HIM TO WORK OR MUST I PAY LEAVE?   
  • The EFMLA defines caring for a child under the age of 18 whose school is closed due to COVID-19 to be a covered event.   The statute does not otherwise contain any distinction based upon the age of the child or the amount of care the employee would reasonably be expected to need to dedicate to care for the child.   The employee can use leave intermittently or full time if the employee is not able to telecommute for an eligible COVID-19 related reason. 

 

 

  • AN EMPLOYEE NOTIFIES HIS SUPERVISOR THAT HE HAS SYMPTOMS OF COVID-19.  CAN I PROHIBIT THIS EMPLOYEE FROM COMING TO THE WORKPLACE?  
  • Yes.  The employer should suggest the employee request available leave to limit further exposure in the workplace. This leave should be taken in full-day increments. Employer should make other employees aware of the risk of exposure and the need for increased protective measures. Protective measures and exposure policies should be more extensive and include a deep-cleaning of all areas which the infected employee had contact with during the previous two weeks. The employer should assess and implement other protective measures as reasonably applicable to the particular work environment to lower the risk of spreading COVID-19 to the employees. 

 

 

  • AN EMPLOYEE NOTIFIES HER SUPERVISOR A HOUSEHOLD MEMBER HAS BEEN DIAGNOSED WITH COVID-19.  CAN I PROHIBIT THIS EMPLOYEE FROM COMING TO THE WORKPLACE? 

 

    • Yes,  If the member of the household is a child or spouse or parent, the employee could request leave under FMLA or Paid Sick Leave.  Leave can be full time or in intermittent time periods. 

 

  • AN EMPLOYEE HAS CALLED OUT OF WORK A NUMBER OF DAYS IN A ROW.  CAN I INQUIRE AS TO THE REASON FOR ABSENCE BEFORE PERMITTING THE EMPLOYEE TO COME BACK?    

 

    • Yes.  

 

  • CAN I REQUIRE EMPLOYEES WHO HAVE TAKEN LEAVE TO PROVIDE A PHYSICIAN’S NOTE CERTIFYING FITNESS BEFORE PERMITTING THEM TO RETURN TO WORK?  
  • Yes.  

 

  • CAN AN EMPLOYER TAKE THE TEMPERATURE OF EMPLOYEES REPORTING TO WORK AS A CONDITION OF ADMITTING THEM TO THE WORKPLACE AS A MEANS OF PROTECTING THE WORKFORCE FROM POTENTIALLY CONTAGEOUS COWORKERS?  

 

  • Yes—because the CDC and various State and local governments have acknowledged community spread of COVID-19, an employer may take the temperature of employees reporting to work.  Ordinarily, taking someone’s temperature is deemed a medial examination and is prohibited by the ADA. Note that even body temperature is deemed to be confidential health information of an employee and employers must appropriately safeguard such information.   Employers taking the temperature of employees also need to provide adequate protection for the employee(s) administering temperature checks.      

 

  • IF AN EMPLOYEE IS DIAGNOSED WITH COVID-19, SHOULD I COMMUNICATE THIS TO MY WORKFORCE AND IF SO, HOW?  
    • The employer should make other employees aware that there was possible exposure at the workplace without revealing the specific employee’s identity.   Consider something such as:

One of our colleagues has been diagnosed with COVID-19.  This employee was last at the workplace on ___________. The Center for Disease Control’s website contains a list of typical COVID-19 symptoms  https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.  If you or anyone you live with are experiencing any of these symptoms, you are not permitted to come to the workplace.  You may be eligible for paid leave under the federal Emergency Family and Medical Leave Expansion Act or Emergency Paid Sick Leave Act.   Contact your immediate supervisor for more details.  All information provided will be kept confidential in accordance all applicable privacy laws.       

 

FINAL WORD

 

This is by no means a complete statement of all of the rights of an employee or the obligations of an employer.  State and local laws may impose additional obligations on employers. Employers are encouraged to consult with legal counsel for specific assistance with specific issues.  

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