COVID-19 has brought an enormous disruption and change to not only businesses but humanity itself. Concerns loom everywhere from cyber risks with employees being required to work-from-home, to benefit plan coverage in the case an employee gets the virus, to keeping business operations afloat.
If you missed our recent webinar, “How will the Families First Coronavirus Response Act Impact Employers?” featuring Peter Hansen, Senior Counsel at SmithAmundsen, that’s okay! We’ve captured the top 12 frequently asked employer questions regarding the legislation to help you be not only more informed but better prepared for what this means for your business.
FAQ # 1:What About Employees Who Already Exhausted FMLA Leave?
We’re still awaiting final regulations from the US Department of Labor (“DOL”), but those individuals most likely are not eligible for paid FMLA. In brief, the Families First Coronavirus Response Act Impact (“FFCRA”) adds a qualifying reason for using FMLA – the FFCRA does not grant additional weeks of FMLA leave, so anyone who exhausted their available FMLA leave prior to April 1, 2020, would not be eligible for additional paid FMLA leave. However, they would still be eligible for emergency paid sick leave.
Similarly, employees who exhaust their 12 weeks of FMLA for COVID-19 related reasons will likely be unable to take additional FMLA leave for the remaining 12-month FMLA period.
FAQ # 2: What if My Business is Not Subject to the FMLA, or the Employee is Not Eligible for FMLA Leave?
All employers with fewer than 500 employees are subject to the paid FMLA mandate. There is no 50 employees within a 75-mile radius or 1,250 hours worked requirement. If an individual is employed for 30+ calendar days, the employee is eligible.
FAQ # 3: Would COVID-19 Infections be Covered by Workers’ Compensation?
Most likely not. Generally, to qualify for workers’ compensation, the employee must show the condition arose out of their employment and was contracted in the course and scope of their employment. The type of worker and the workplace environment are critical factors in making this decision. Healthcare workers, for example, have a better argument for qualifying for workers’ compensation, but still likely face an uphill battle.
FAQ # 4: Are We an “Essential Business?”
Stay-at-home orders, shelter-in-place orders, etc. generally include exceptionally broad definitions of “essential businesses” – so, if your state-issued a stay-at-home or shelter-in-place order, you probably have a good argument that you are indeed an essential business.
However, note that most orders include additional obligations for essential businesses to stay open. Illinois allows essential businesses to stay open provided they, if possible, comply with social distancing requirements:
- Designate six-foot distances
- Make hand sanitizer available to employees and customers
- Implement separate operating hours for elderly and vulnerable customers
- Post online whether a facility is open and how best to reach the facility and continue services by phone or remotely
Interestingly, Pennsylvania’s order provided a list of non-essential businesses – though many of the businesses would likely have temporarily closed regardless of the order. Pennsylvania’s non-essential businesses include public-facing industries such as entertainment, hospitality, and recreation facilities, including but not limited to community and recreation centers; gyms, including yoga, barre, and spin facilities; hair salons and barber shops, nail salons and spas; casinos; concert venues; theaters; sporting event venues and golf courses; retail facilities, including shopping malls except for pharmacy or other health care facilities within retail operations.
FAQ # 5: What COVID-19 Policies Can or Should We Put Into Place Now?
- Immediately send home employees who appear to be ill, particularly those with fever (100.4), shortness of breath, cough, and body aches.
- Implement a NO CONTACT policy.
- Emphasize coughing/sneezing etiquette and hand hygiene.
- Stagger your shifts more. Meaning, fewer bodies using certain facilities at certain times (e.g., locker rooms).
- Provide tissues, no-touch disposal receptacles, soap and water, and alcohol-based hand rubs with at least 60% alcohol.
- Perform routine environmental cleaning of all frequently touched surfaces and provide disposable wipes so that commonly used surfaces can be wiped down before use (e.g., conference tables, reception areas).
- Consider relaxing any no-fault attendance policy – but make it clear that this is exclusively for the COVID-19 outbreak/pandemic.
- Employees who have a sick family member at home with COVID-19 should notify their Human Resources Department as soon as possible.
If an employee tests positive for COVID-19:
- Have the employee identify anyone with whom they worked closely within the prior 14-days (including customers and vendors).
- Undertake a deep cleaning of any affected workspaces.
- If your workspace is in a shared building or area, notify building management so they can take any precautions they deem necessary.
- Employees with direct contact to the infected employee should leave work, go home, and contact their healthcare provider for a follow-up. All employees who worked closely with the infected employee must monitor themselves for the development of any of the following symptoms:
- Fever (temperature of 100.4 or higher), cough, aches, or difficulty breathing
- If they develop any of these symptoms, they must contact a health care provider and stay home until the doctor says they can return to work, and they are free of COVID-19 related symptoms for at least 24 hours without the use of fever or other symptom reducing medication.
FAQ # 6: Are there any OSHA-Related Concerns or Considerations?
OSHA regulates all employers, but no specific rule mandating precautions employers must take to protect workers from COVID-19. Specific guidance is available here.
OSHA expects employers to follow the general duty clause, which says workplaces must be free of known hazards that can be corrected, and that any employer with 10+ workers to keep a log of every workplace illness that requires medical treatment or keeps a worker away from work for at least one day … but if unknown whether the illness occurred at work, the employer must evaluate the employee’s work duties and environment to decide whether exposures at work either caused or contributed to the illness.
FAQ # 7: Can Employees Use FMLA Leave to Cover COVID-19?
If the employer is subject to the FMLA, and the employee meets the FMLA’s eligibility requirements are met, an employee would likely qualify for FMLA leave if:
- The employee becomes seriously ill from COVID-19; or
- The employee is caring for a family member who is seriously ill from COVID-19
FAQ # 8: Can I Send Employees Home if They Display COVID-19 Symptoms?
Yes. Per the Equal Employment Opportunity Commission (EEOC):
Employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat. Applying this principle to current CDC guidance on COVID-19, this means an employer can send home an employee with COVID-19 or symptoms associated with it. See https://www.eeoc.gov/facts/pandemic_flu.html
FAQ # 9: What are the Potential Penalties for Paid Sick Leave Violations?
Paid Sick Leave violations are treated as FLSA violations, meaning employers could be facing:
- Fine of up to $10,000
- Including an amount that should have been paid to the employee
- Liquidated damages
- Attorneys’ fees
The DOL will observe a temporary period of non-enforcement for the first 30-days after FFCRA becomes effective, so long as the employer has acted reasonably and in good faith to comply with the Act. For purposes of this non-enforcement position, “good faith” exists when:
- Violations are remedied, and the employee is made whole as soon as practicable by the employer;
- The violations were not willful; and
- The DOL receives a written commitment from the employer to comply with the Act in the future.
FAQ # 10: Does COVID-19 Infection Constitute a Disability Under the ADA?
The EEOC seems to think so. Per the EEOC:
The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in a delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible. See https://www.eeoc.gov/facts/pandemic_flu.html
Engage any employee infected with COVID-19 in the interactive process, specifically as it relates to the employee’s ability to perform the job. Be consistent in your treatment of employees – treat all potentially communicable illnesses similarly (and rationally).
FAQ # 11: How Should We Handle Employees Who Refuse to Come to Work Due to Fear of Infection?
They likely do not qualify for emergency paid sick leave or paid FMLA – concern over COVID-19 infection is not a qualified reason. Moreover, any employee refusing to work due to fear of COVID-19 infection will likely be deemed as refusing suitable work and, as a result, ineligible for unemployment insurance benefits.
An employer is not required to accommodate employees’ fear of infection. However, this could lead to treatment for anxiety, depression, etc. Employees do not have a right to work from home if the business does not accommodate the practice.
FAQ # 12: If We Lay Off Workers, Are We Subject to the WARN Act?
Federal WARN requires employers to provide displaced workers 60 days’ advanced written notice of a plant closing or a mass layoff
- Plant closing: 50+ employment losses at a single location in a 90-day period.
- Mass layoff: 50+ employment losses at a single location in a 90-day period that also involves 33% of the active workforce at the location.
Temporary layoffs of less than 6 months are not counted as an employment loss under Federal WARN.
Under the current circumstances, the timing requirement will likely not be possible. It is probable that this would qualify for any one of the three general Federal WARN exceptions to the timing requirement:
- Faltering company
- Unforeseen business circumstances
- Natural disaster
BUT, if you are subject to federal WARN, notice is still required.
Some states have their own mini-WARN laws that require notice of 30, 60, or 90 days, and some states consider short temporary layoffs to trigger mini-WARN obligations. You must check your own state laws to determine whether you are subject to mini-WARN, whether any exemption applies, and so on.
Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.