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The EEOC Provides Further Clarification on COVID-19 Issues and Re-Affirms That Employers May Require Employees to Get Vaccinated


June 3, 2021

Rina RussoJune 3, 2021

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated and expanded its technical assistance publication addressing COVID-19 issues arising under the federal equal employment opportunity laws.  In its updated guidance, the EEOC reiterated its prior opinion that employers may require employees to receive the COVID-19 vaccine as a condition of physically entering the workplace, so long as such requirement allows employees to seek accommodations from the requirement on the basis of a disability or a sincerely held religious belief.  The updated guidance also provides further clarity on several other COVID-19 vaccine issues, the highlights of which are discussed below.

Mandatory Vaccinations

Employers that require employees entering the workplace to receive the COVID-19 vaccine (with exceptions for reasonable accommodations) will still need to abide by all applicable laws in implementing that requirement.  As pre-screening vaccination questions are likely to elicit information about a disability under the ADA, an employer that administers the vaccine itself (or has contracted with a third-party to administer the vaccine to its employees) must show that any pre-screening disability questions are “job-related and consistent with business necessity.”  Employers can avoid this issue if they require employees to receive a COVID-19 vaccine independently from a third-party (such as through a pharmacy or health care provider to which the employer has no connection).

Mandatory Vaccinations and Pregnant Employees

If an employee seeks an accommodation to a vaccine requirement due to pregnancy, the employer must make sure that the employee is not being discriminated against as compared to other employees similar in their ability or inability to work. According to the EEOC, this means that “a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.”

Proof of Vaccination is Confidential Medical Information

Regardless of whether an employer makes vaccination mandatory, the EEOC also clarified that information related to an employee’s COVID-19 vaccination status is confidential medical information under the ADA. Therefore, while employers may lawfully request “proof” of receipt of the COVID-19 vaccine, including in connection with mask policies, they must retain that documentation as confidential and separate from an employee’s personnel file.  Employers should also be careful to caution employees not to provide any other medical information as part of the verification process.

Vaccination Incentives

In response to concerns about what employers can do to encourage employees to receive the COVID-19 vaccine (as opposed to requiring the vaccination), the EEOC has indicated that employers can provide employees incentives for voluntarily receiving the COVID-19 vaccine. However, any such incentive should not be so substantial as to be coercive.  However, one question that the EEOC did not address is whether and to what extent an employer must provide an equal incentive to an employee who is unable to obtain a vaccine because of a medical or religious reason.

Accommodations for Fully Vaccinated Employees

The EEOC’s guidance also addresses accommodation requests from fully vaccinated employees that are still seeking accommodations based on a continued concern for heightened risk of severe illness from COVID-19.  The EEOC clarifies that employers must treat these requests for accommodation just like all others, and should engage in the interactive process to determine if there is a disability-related need for a reasonable accommodation.  The EEOC provides the example that some immunocompromised individuals may still need reasonable accommodations because their conditions render the vaccines less effective.

Please note that the EEOC’s guidance is limited to the federal equal employment opportunity laws it enforces.  Accordingly, state and local laws may have different requirements.  We will continue to monitor developments related to the new vaccines and related workplace questions that arise.  The attorneys at Walter | Haverfield are here to help you navigate your obligations under local, state, and federal laws.

Rina Russo is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at rrusso@walterhav.com or at 216-928-2928.

Legislative Changes to Employee Benefits Law: Federal Funding for COBRA and Flexible Spending Account Relief

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May 14, 2021

Petra BradburyMay 14, 2021 

In response to the coronavirus pandemic, Congress enacted several legislative changes to employee benefits law. The Consolidated Appropriations Act of 2021 (“CAA”) creates temporary special rules for health and dependent care flexible spending accounts, and the American Rescue Plan Act (“ARPA”) provides subsidized COBRA coverage for individuals and families.

Flexible Spending Accounts

The CAA, passed at the end of 2020, allows plan sponsors to make several optional amendments to flexible spending account plans, including amendments to allow post-termination reimbursements from health flexible spending accounts, plan year carryovers, and extended grace periods.

Post-Termination Reimbursements. The CAA allows plan sponsors to amend health flexible spending account plans to permit post-termination reimbursements to employees who cease to participate in the plan during calendar year 2020 or 2021. The permitted amendment would allow former participants to spend down unused benefits or contributions through the end of the plan year during which the employee ceased to participate—including through any grace period.

Under the CAA, post-termination reimbursements for health flexible spending accounts must follow rules similar to the rules that apply to dependent care flexible spending accounts. A dependent care flexible spending account plan can include a spend-down provision if:

  • The plan provides dependent care assistance;
  • The plan does not discriminate in favor of highly compensated employees;
  • 25 percent or less of amounts paid or incurred by the employer during the year are for principal shareholders or owners of the employer;
  • Eligible employees are notified;
  • Written expense statements are provided to employees; and
  • Applicable nondiscrimination testing is satisfied.

Plan Year Carryovers. For plan years ending in 2020 and 2021, the CAA allows plan sponsors to permit participants to carryover the entire unused benefit or contribution remaining in the participant’s flexible spending account to the next plan year.  Prior law only allowed carryovers for health flexible spending accounts—limited to $550 per plan year—but the CAA permits carryovers of the entire account balance for both health and dependent care flexible spending accounts.

In addition, dependent care flexible spending accounts may permit participants who elected dependent care flexible spending account coverage for the 2020 plan year during an enrollment period that ended on or before January 31, 2020, and whose dependent child reached age 13 during the 2020 plan year, to continue to use their dependent care flexible spending account funds for the child’s expenses through the end of the 2020 plan year.  Further, if a balance remains in the participant’s dependent care flexible spending account at the end of the 2020 plan year, the participant may use that balance for the child’s expenses into 2021, until the child reaches age 14.

Extended Grace Periods. Under the grace period rule, a flexible spending account plan may permit employees to use amounts remaining from the previous year—including amounts remaining in a health flexible spending account—to pay expenses incurred for qualified benefits after the end of the plan year. For plan years 2020 and 2021, the CAA allows plan sponsors to extend the grace period from two and a half months after the end of the plan year, to 12 months after the end of the plan year.

COBRA Premium Subsidy & Tax Credit

The ARPA, passed in March 2021, provides subsidized COBRA coverage of up to six months of 100 percent coverage from April 1, 2021, through September 30, 2021, for assistance-eligible individuals. An assistance-eligible individual is a COBRA qualified beneficiary who is eligible for and elects COBRA coverage due to a qualifying event of involuntary termination of employment or reduction of hours. The subsidy is available for any period of coverage between April 1, 2021, and September 30, 2021. However, eligibility may end earlier if the qualified beneficiary’s maximum period of coverage ends before September 30, 2021, or if the qualified beneficiary becomes eligible for coverage under another group health plan.

Individuals who do not have a COBRA election in effect on April 1, 2021—but who would be eligible for the subsidy if they did—are also eligible for the subsidy. Further, individuals who discontinued COBRA coverage before April 1, 2021—but who would be eligible for the subsidy if they had not discontinued coverage—are eligible if they are within their maximum period of coverage. These individuals can make a COBRA election beginning April 1, 2021, and ending 60 days after the group plan provides the individual the required notification of the extended election period.

Notices from Assistance-Eligible Individuals to Health Plan. Assistance-eligible individuals must notify the group health plan if they cease to be eligible for the subsidy, and can face penalties of $250 (or more for intentional failures) if the individual fails to provide the required notification.

Notices to Assistance-Eligible Individuals. Group health plans must provide certain notices to assistance-eligible individuals, including:

  • Notice of assistance availability;
  • Notice of extended election period; and
  • Notice of expiration of subsidy.

The Department of Labor has issued model notices that group health plans should use to notify eligible individuals and a Summary and Request for Treatment as an Assistance Eligible Individual. Copies of the model notices and the Summary are attached to this Client Alert.

Refundable Tax Credit. Under the ARPA, the employer pays the cost of subsidized COBRA coverage and can take a refundable quarterly tax credit against Medicare payroll taxes equal to the premium amounts not paid by assistance-eligible individuals. The quarterly credit may be paid in advance.

State “Mini-COBRA”

Employers who have fewer than 20 employees may have to comply with ARPA provisions described above that apply with respect to their state’s “mini-COBRA” law for extended continuation coverage.  The ARPA (i) does not require an extension of the time in which to apply for coverage under the state’s mini-COBRA law, (ii) does not require certain notices required under the ARPA for federal COBRA to be provided if notice is not required under the state’s mini-COBRA law, and (iii) does not require subsidized coverage be provided if the loss of coverage resulted from a reduction in hours if the state mini-COBRA law does not provide for continuation coverage in that circumstance.  A copy of the Department of Labor’s model notice regarding state continuation coverage and the ARPA is attached.

Severance Agreements

Severance agreements often include provisions regarding employer payment of some or all COBRA premiums for a specified time period.  Future severance agreements that will take effect during the subsidy period should be appropriately drafted to take into account the ARPA 100% subsidy.  Existing severance agreements should be reviewed to determine if any changes are needed.

Conclusion

The legislative changes to flexible spending account plans are permissive—not mandatory—and have administrative and financial implications. Plan sponsors with questions about adopting the permitted amendments and administering the changes should contact Walter Haverfield attorneys.

Employers with questions about how to administer the COBRA subsidy, provide the required notice, and take the new COBRA tax credit under the ARPA should contact Walter Haverfield attorneys before May 30, 2021, when the first notices are due.

Resources 

Tim Jochim is a partner in the Columbus, Ohio office of Walter |Haverfield and a national authority on business succession and employee stock ownership plans (ESOPs). Tim can be reached at tjochim@walterhav.com or at 614-246-2152.

Mike Sorice is an associate in the Columbus, Ohio office of Walter | Haverfield. He assists closely-held businesses with business succession planningmergers and acquisitions, and tax planning. Mike can be reached at msorice@walterhav.com or at 614-246-2262.

Russell Shaw is a partner in the Cleveland, Ohio office of Walter | Haverfield and focuses his practice on employee benefits, which include retirement plans, executive deferred compensation plans, welfare benefit plans, VEBAs, and 403(b) tax-deferred annuity plans. Russell can be reached at rshaw@walterhav.com or at 216-928-2888.

Petra Bradbury is an associate in the Cleveland, Ohio office of Walter | Haverfield and focuses her practice on employee benefits and deferred compensation plans. Petra can be reached at pbradbury@walterhav.com or at 216-619-7841. 

The Department Of Labor Issues Guidance Regarding the Compensability of Certain Travel Time for Employees Who Telework Part of the Day

and
January 25, 2021

Christine CosslerJanuary 25, 2021

The Department of Labor (DOL) Wage and Hour Division (WHD) recently issued guidance, in the form of an opinion letter, addressing whether certain travel time for partial-day teleworkers is compensable time under the Fair Labor Standards Act (“FLSA”).

While it does not carry the same force as a statute or regulation, an opinion letter is an official interpretation by the DOL on how it believes the FLSA applies in specific circumstances. In turn, because the DOL has enforcement authority over FLSA complaints, these opinion letters provide useful guidance to employers.

In Opinion Letter FLSA 2020-19, the DOL considered whether an employee who  teleworks for part of the day and works at the office for part of the day, while completing personal tasks in between, must be compensated for the intervening travel time. This factual scenario has become more common during the COVID-19 pandemic as employers continue to implement flexible and alternative work arrangements.   In answering this question, the DOL considered two hypothetical scenarios: (1) an employee who leaves the workplace to attend a parent-teacher conference and works remotely after the conference and, (2) an employee who works remotely in the morning, attends a doctor’s appointment and then travels to the office for the remainder of the work day.  In both of these scenarios, the WHD concluded that payment for the travel time was not required under the FLSA.

Under the FLSA, the time a non-exempt employee spends traveling to and from work is not compensable if it occurs before an employee starts or after the employee stops work. However, time spent traveling during normal work hours to and from multiple worksites is considered compensable travel time.  Further, under the continuous workday doctrine, all time between the employee’s first and last principal activity of the day is generally considered compensable work time.

In the first scenario addressed in the Opinion Letter, the DOL concluded the travel time between leaving the office and resuming teleworking was not compensable under the FLSA because “her time [was] hers to do with as she pleases.”  The DOL reached a similar conclusion regarding the second scenario, stating, “when employee arranges for her workday to be divided into a block worked at home and a block worked at the office, separated by a block reserved for the employee to use for her own purposes, the reserved time is not compensable, even if the employee uses some of that time to travel between home and the office.”

The DOL also concluded the travel time was not compensable under the worksite-to-worksite rule because the employer was not requiring the travel as part of the employee’s work, but rather the travel was for their own purposes. The DOL further concluded the continuous workday doctrine did not apply because the employees were “off-duty” during the travel time.

Wage and hour issues remain fact specific so if you have any questions, please contact us here.

Christine Cossler is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at ccossler@walterhav.com or at 216-928-2946.

Elizabeth Bolduc is an associate at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at ebolduc@walterhav.com or at 216-658-6218.

The EEOC Confirms that Employers May Require Employees to Receive the COVID-19 Vaccine, with Exceptions

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January 12, 2021

Rina RussoJanuary 12, 2021 

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated and expanded its technical assistance publication addressing issues arising under the federal equal employment opportunity laws implicated in the COVID-19 pandemic. In its guidance, the EEOC indicated that employers may require employees to receive the COVID-19 vaccine, so long as such requirement allows employees to seek accommodations from the requirement on the basis of a disability or a sincerely held religious belief. If an employee objects to receiving a COVID-19 vaccine for reasons related to the employee’s disability or sincerely-held religious belief, the employer has a duty to engage in the “interactive process” to determine whether it can make a reasonable accommodation for the employee.

Because pre-screening vaccination questions are likely to elicit information about a disability, an employer that plans to administer the vaccine (or have a third party with whom the employer contracts to administer a vaccine), must show that any pre-screening-disability inquiries are “job-related and consistent with business necessity.” However, this rule does not apply to (1) employers that make the vaccination voluntary or (2) employers that mandate the COVID-19 vaccine be obtained by a third-party (such as a pharmacy or other healthcare provider) to which it has no connection. The guidance also clarifies that employers may request proof of receipt of a COVID-19 vaccine from their employees. However, employers that request such proof of vaccination should caution employees not to provide other medical information as part of the verification process to avoid implicating the Americans with Disabilities Act (ADA).

Additionally, the EEOC made clear that it will not be a violation of the Genetic Information Nondiscrimination Act (GINA) to require employees to receive COVID vaccines that use new mRNA technology. However, employers should be careful not to ask employees for genetic information, including the employees’ family histories.

Although it appears that federal law allows employers to mandate COVID-19 vaccinations of employees in certain circumstances, employers must carefully consider multiple factors before determining whether to implement a mandatory COVID-19 vaccination policy. Employers must consider any applicable state and local laws related to mandatory vaccinations.  Additionally, for unionized entities, employers must review their collective bargaining agreements to determine whether they have a duty to bargain prior to implementing such a policy.  Employers should also consider how to balance their interest in maintaining a safe work environment with employee privacy concerns and morale.

Regardless of whether an employer decides to mandate COVID-19 vaccinations, it should start preparing and/or updating their infection prevention policies as vaccinations become more readily accessible to the general public. We will continue to monitor developments related to the new vaccines and related workplace questions that arise.

Rina Russo is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at rrusso@walterhav.com or at 216-928-2928.

Elizabeth Bolduc is an associate at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at ebolduc@walterhav.com or at 216-658-6218.

Coronavirus Relief Bill Signed Into Law


December 29, 2020

December 29, 2020 

On December 27, 2020, President Trump signed the Consolidated Appropriations Act, 2021 into law, which provides $900 billion in coronavirus relief and $1.4 trillion to fund the government.  Below is a summary of the bill’s many provisions that will affect employers.

  • Payroll credit for paid sick and family leave: The Families First Coronavirus Response Act (FFCRA) provided a refundable tax credit for the mandated paid sick leave and family leave for private-sector employers with under 500 employees. The bill does not extend the FFCRA provisions that required private and public sector employers (state and local government entities) to provide emergency paid sick and family leave. Instead, this bill extends the tax credit through March 31, 2021, for private-sector employers that voluntarily continue to offer paid sick and family leave to their employees for the same as available under the FFCRA.  Importantly, the bill does not create additional leave entitlements, employees still only have the original 80 hours of paid sick leave and 12 weeks of expanded family and medical leave (of which, the first two weeks are unpaid by default). Employers will not receive tax credits for any amount of emergency paid sick and family leave that is provided in excess of the FFCRA’s statutory limits. Additionally, to be eligible for the tax credits, employers may not discharge, discipline, or discriminate against any employee who seeks to take emergency paid sick and family leave.
  • Payroll Tax Deferral: Workers whose payroll taxes have been deferred since September would be given until Dec. 31, 2021, to pay back the government, instead of through April 30, 2021, as originally directed by the Treasury Department.
  • CARES ACT: Extends and expands the CARES ACT employee retention tax credit (ERTC). Extends the date by which state and local governments must make expenditures with CARES Act Coronavirus Relief Fund (CRF) awards from Dec. 30, 2020, to Dec. 31, 2021.
  • Unemployment Benefits: Extends the Federal Pandemic unemployment Compensation (FPUC) program through March 14, 2021, providing $300 per week for all workers receiving unemployment benefits.

As of January 1, 2021, the emergency paid sick and family leave under the FFCRA will become voluntary to employers. Employers should determine whether it will continue to offer paid sick and family leave consistent with the FFCRA. Employers will need to revise and update their existing leave policies and practices.

The attorneys at Walter | Haverfield are here to help you navigate your obligations under local, state, and federal laws.

Elizabeth Bolduc is an attorney at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at ebolduc@walterhav.com or at 216-658-6218.

Department of Labor’s Updated Temporary Rule on Families First Coronavirus Response Act


September 14, 2020

Rina Russo

September 14, 2020 

 

On September 11, 2020, the United States Department of Labor (“DOL”) issued an updated temporary rule on the Families First Coronavirus Response Act (“FFCRA”). The updated temporary rule was anticipated following the August 2020 ruling from United States District Court for the Southern District of New York Judge Oetken that vacated certain portions of the DOL’s April 2020 temporary rule.

In the updated temporary rule, the DOL made the following clarifications:

  1. Reaffirmed that emergency paid sick leave (“EPSL”) and expanded family and medical leave (“EFML”) may be taken only if the employee has work from which to take leave. This rule applies to all qualifying reasons to take EPSL and EFML under the FFCRA.
    1. Explaining further, the DOL indicated that the qualifying reason for leave must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he/she had a FFCRA-qualifying reason.
    2. For practical purposes, this means that an employee on a layoff or furlough without work to perform for the employer is unable to take FFCRA leave, even if he/she has a qualifying reason for such leave.
  2. Reaffirmed that an employee must obtain his/her employer’s approval to take EPSL or EFML on an intermittent basis. The DOL also reaffirmed that child care leave under the FFCRA is the only leave that may be permitted on an intermittent basis when employees are reporting to the work site. Where employer consent is obtained, an employee may take intermittent FFCRA leave for any reason where the employee is working remotely.
    1. However, the DOL explained that an employee, whose child’s school is on a “hybrid” schedule (i.e., where there is in-person instruction some days each week and remote learning instruction other days each week), may take childcare leave only on the days of remote learning instruction without obtaining employer consent. The DOL clarified that each day the school is closed to students for remote learning is a separate qualifying reason for leave under the FFCRA, and therefore, is not leave on an intermittent basis.
    2. Employees who have opted to enroll their child in remote learning where in-person instruction is available to their child will not qualify for FFCRA leave, however.
  3. Revised the definition of “health care provider” for the health care provider exemption to apply to only employees who are (1) deemed health care providers under existing FMLA regulations, or (2) 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.
    1. The updated temporary rule provides examples of types of positions that will qualify for the exemption and those that will not.
    2. Employers exempting health care provider employees from the FFCRA’s paid leave provisions should review the revised regulation to assess whether their employees still qualify for exemption.
  4. Revised its prior rule to clarify that an employee must provide relevant information to demonstrate he/she qualifies for FFCRA leave to his/her employer as soon as practicable, as opposed to prior to the leave being taken.

The updated temporary rule goes into effect on September 16, 2020.  Employers should review the DOL’s new interpretation of the FFCRA and implement any necessary changes to their internal processes to comply.

Rina Russo is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at rrusso@walterhav.com or at 216-928-2928.

OSHA Requires the Recording of COVID-19 Cases in the Workplace


July 22, 2020

Rina RussoJuly 22, 2020 

The Occupational Safety and Health Administration (OSHA) revised its earlier enforcement guidance on recording COVID-19 cases in the workplace. The updated guidance requires employers to investigate whether a particular case of coronavirus is work-related. This may prove to be a difficult task for many employers as those infected are often uncertain of where they came in contact with COVID-19.

Furthermore, under OSHA’s new requirements, COVID-19 is now a recordable illness unlike the common cold or seasonal flu. That means that employers are responsible for recording cases of COVID-19 if it is confirmed as a coronavirus illness, the illness is work-related, and the incident involves one or more of OSHA’s general recording criteria.

In its guidance, OSHA states that illnesses may be work-related when there are several cases among employees who work in close proximity. Illnesses may also be work-related if one’s job duties include frequent, close exposure to the public in an area with ongoing community spread. Additionally, if one contracts COVID-19 soon after lengthy, close exposure to a customer or co-worker who has a confirmed case, the illness may also be classified as work-related. Specific definitions for what is defined as work-related and the criteria involved in recording cases to OSHA can be found here.

Due to the nature of the current public health crisis, OSHA will continue to exercise its enforcement discretion and implement the record-keeping requirements for work-related COVID-19 illnesses until further notice.

Rina Russo is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at rrusso@walterhav.com or at 216-928-2928.

EEOC Updates Its COVID-19 Guidance to Allow Employers to Test Employees for COVID-19

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April 28, 2020

Rina RussoApril 28, 2020 

On April 17, 2020, and April 23, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released updates to its publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” With the prospect of employees returning to work, the EEOC’s updates address several issues inherent in that return, such as COVID-19 testing of employees and accommodation challenges that employers may face as their employees return to work. Although the entire revised guidance can be found in the provided link above, some of the most notable updates are below:

1. Employers may administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace.

The Americans with Disabilities Act (ADA) requires that any mandatory medical test of employees be “job related and consistent with business necessity.”   This standard allows employers to take steps (including testing) to determine if returning employees have the virus because a COVID-19 positive employee entering the workplace will pose a direct threat to the health of others. Along with testing, employers should also maintain infection control practices (such as body temperature checks) to prevent infection.  Employers must require employees who have tested positive for COVID-19 or have COVID-19 symptoms to stay home.

2. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer.

Screening candidates is only permissible when it is done for all entering employees in the same type of job. An employer may also withdraw a job offer when it needs the applicant to start immediately, but the individual is confirmed positive for COVID-19 or is experiencing symptoms of COVID-19 because the individual cannot safely enter the workplace.

3. An employer may not treat high risk applicants differently during the pandemic.

An employer may not postpone the start date or withdraw a job offer because a candidate is 65 years old or pregnant because those individuals are at a high risk of COVID-19. However, an employer may choose to allow telework or discuss with these individuals if they would prefer a postponed start date.

4. Employers engaging in the interactive process to provide returning workers with accommodations may consider the effects of the pandemic while evaluating reasonableness.

In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. Acquiring some accommodations during the pandemic may pose significant difficulty and expense, making it unreasonable. However, employers may still not engage in blanket refusals to find reasonable accommodations because of the pandemic. Even with constraints imposed by the pandemic, some accommodations may meet an employee’s needs without causing undue hardship, as low-cost solutions may be achieved with materials already on hand or easily obtained.

5. Employers may offer reasonable accommodations for employees who, due to a preexisting disability, are at higher risk from COVID-19.

An employer may also reach out to employees before states ease stay-at-home orders to find out if they will need reasonable accommodations when they are permitted to return to the workplace.

6. Employers are not exempt from providing reasonable accommodations to employees while implementing infection control practices. New rules requiring employees to wear personal protective equipment should not interfere with the employer’s ongoing duty to consider accommodations for employees with medical conditions that may limit their compliance.

Rina Russo is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at rrusso@walterhav.com or at 216-928-2928 .

Shaka Sadler is an associate at Walter |Haverfield who focuses her practice on labor and employment law. She can be reached at ssadler@walterhav.com or at 216-619-7851. 

 

Department of Labor Issues Regulations on Families First Coronavirus Response Act


April 20, 2020

Rina RussoApril 20, 2020 

The United States Department of Labor (DOL) has issued temporary regulations interpreting the Families First Coronavirus Response Act (FFCRA). The temporary regulations cover many topics in 125 pages, and this client alert seeks to summarize some of the main points of the regulations.

Covered Employers

Private employers with fewer than 500 employees and most public employers of any size must provide emergency paid sick leave (EPSL) and emergency family and medical leave (EMFL) to eligible employees. The DOL will measure the employee count at the time the employee’s leave is to be taken. Therefore, if the employer has 499 employees at the time of an employee’s leave request, but subsequently hires additional employees that puts the total employee count over 500 employees, the employer must still provide the leave to that employee.

In calculating the number of employees, employers must include full-time and part-time employees, employees on leave, temporary employees who are jointly employed with the employer, and day laborers supplied by a staffing agency. Employees included in the count must be employees working in the United States – employees working outside the country are not counted.

Required Documentation

Prior to being able to take EPSL or EFML, employees requesting the leave must provide:

  • The employee’s name
  • The dates for which the employee requests leave
  • The qualifying reason, and
  • An oral or written statement that the employee is unable to work because of the qualifying reason

Additionally, the DOL has outlined the type of information employees must provide in support of the different types of leave under EPSL and EFML:

  • An employee subject to a federal, state, or local quarantine or isolation order related to COVID-19 must provide the name of the governmental entity that issued the order.
  • An employee whose health care provider has advised him/her to self-quarantine due to concerns related to COVID-19 must provide the name of the health care provider who advised the employee to self-quarantine.
  • An employee who is caring for an individual who is subject to a quarantine or isolation order, or an individual who has been advised by a health care professional to self-quarantine, must provide either the name of the governmental entity that issued the order or the name of the health care provider who advised the individual being cared for to self-quarantine.
  • An employee who is caring for a child whose school or daycare is closed or childcare provider is unavailable due to COVID-19 must provide: the name of the child; name of the school, daycare, or childcare provider that has closed or become unavailable, and a representation that no other suitable person will be caring for the child during the period of leave requested.

In addition to the above information, the DOL refers to the IRS guidance that requires the employer obtain and retain additional information to obtain a tax credit for the leave.

Not Retroactive

Leave under the FFCRA is not retroactive prior to the effective date of the statute, April 1, 2020. Accordingly, any paid leave employers provided employees prior to April 1, 2020 for FFCRA-qualifying reasons will not count towards an employee’s entitlement to leave under the FFCRA. Further, employers do not need to retroactively pay employees for time off work prior to April 1, 2020 that would have otherwise qualified for FFCRA leave.

Laid Off and Furloughed Employees Not Eligible for Leave

Otherwise eligible employees of covered employers who are laid off or furloughed are not eligible for emergency paid sick leave or emergency family and medical leave.

Employees That Can Be Excluded From Leave

Otherwise covered employers can exclude otherwise eligible employees if those employees are health care providers or emergency responders.

The rule defines “health care provider” to include “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution.”

The rule defines “emergency responder” to include “anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19.” The rule also provides the following non-exhaustive list of the types of jobs that will be considered “emergency responders”: “military or national guard, law enforcement officers, correctional institution personnel, firefighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, 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.”

Use of Intermittent Leave Restricted

The DOL has limited the use of FFCRA leave to only apply to leave granted on the basis of the employee’s need to care for a child whose school or daycare is closed or whose childcare provider is unavailable due to COVID-19.  Even in that case, intermittent leave will only be granted where the employee and employer agree to use of intermittent leave. Accordingly, intermittent leave cannot be used for any of the other qualifying reasons for leave under the FFCRA, except in the case of telework, where intermittent leave is available for teleworking employees taking leave under the FFCRA for all reasons, provided the employer and employee agree to allow intermittent leave usage.

Small Business Exemption

The regulations also provide that an employer with 49 or fewer employees can be exempt from providing FFCRA leave for childcare reasons when allowing such leave would jeopardize the viability of the business as a growing concern.  To use this exemption, an authorized officer of the employer must make the determination that:

  • The leave requested 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(s) requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities.
  • There are no 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 leave, and the labor or services are needed for the small business to operate at a minimal capacity.

To elect this exemption, the employer must document that an authorized officer of the employer made this determination and retain that record. Employers should be extremely cautious in applying the exemption and be prepared to address how it determined the exemption applied in each leave request scenario.

Questions and Answers

In addition to the temporary regulations, the DOL has been updating its “Questions and Answers” related to FFCRA. As the DOL has been updating and revising its guidelines as time goes on, employers should check back often to see if there is any new guidance.

Rina Russo is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at rrusso@walterhav.com or at 216-928-2928.

 

Department of Labor Issues Required Families First Coronavirus Response Act Poster


March 25, 2020

Rina RussoMarch 25, 2020 

On March 25, 2020, the United States Department of Labor (DOL) released its Families First Coronavirus Response Act (FFCRA) notice.  The required notice can be located here (please see first link under “Posters” section). The notice contains basic information about the types of leave certain employees are entitled to under the FFCRA. Further information about the required leave provisions under the FFCRA can be located here.

All covered employers (employers with under 500 employees and most public employers regardless of size) must post this notice in a conspicuous place on its premises that is accessible to all employees. An employer may also satisfy the posting requirement by e-mailing or mailing the notice to its employees, or by posting the notice on an employee information internal or external website.

As reported on the notice, the DOL has interpreted the FFCRA to have an effective date of April 1, 2020.

Rina Russo is a partner at  Walter | Haverfield who focuses her practice on  labor and employment law . She can be reached at  rrusso@walterhav.com or at 216-928-2928.

 

Families First Coronavirus Response Act: What it Means for Employers


March 19, 2020

Rina RussoUpdated: March 25, 2020

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law. The FFCRA contains two main provisions that address employee leaves – the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”).  Both of these provisions go into effect on April 1, 2020 and are expected to remain in place until December 31, 2020.  The provisions of the EFMLEA and EPSLA apply to employers with less than 500 employees.

 

The Emergency Family and Medical Leave Expansion Act (EFMLEA)

The Basics 

The EFMLEA expands the existing Family and Medical Leave Act (“FMLA”), but has several different provisions and requirements than the FMLA in response to the COVID-19 pandemic.  Under the EFMLEA, employers with less than 500 employees are required to provide up to twelve (12) weeks of job-protected leave to an employee who cannot work or telework due to the need to care for a child under the age of 18 when the child’s school or day care is closed or the child’s caregiver is unavailable due to the COVID-19 public health emergency.

Partially Paid Leave

Unlike the FMLA, the leave is partially paid.  While the first ten (10) days of the leave can be unpaid (subject to other paid leave availability and paid leave under EPSLA discussed below), thereafter, the leave is paid at a rate of 2/3 of the employee’s regular rate of pay, up to a cap of $200 per day, and $10,000.00 in total.  During the first ten days of unpaid leave, employees are permitted (but not required) to use available paid time off to cover some or all of the unpaid period.  Additionally, employees may also utilize the ten (10) days of paid sick leave under the EPSLA to obtain pay for the first 10 days of the EFMLEA leave, provided that the employee qualifies for leave under EPSLA.  Also unlike the FMLA, employees are eligible for this partially paid leave after working for their employer for thirty (30) days.

Job-Protected Leave

Similar to the FMLA, an employer is required to return the employee to his/her position following the end of the leave.  Employers with less than twenty-five (25) employees are exempted from this requirement, but only if the employee’s position no longer exists due to economic or operating conditions due to the COVID-19 health emergency and the employer makes reasonable efforts to restore the employee to an equivalent position with equivalent pay, benefits, and employment terms/conditions for a one-year period following the end of the leave.

Tax Credit

Employers can receive a refundable tax credit equal to 100% of the qualified family leave wages they pay for each calendar quarter pursuant to the EFMLEA. The tax credit is allowed against the employer portion of Social Security taxes.

 

The Emergency Paid Sick Leave Act (EPSLA)

The Basics

The EPSLA provides employees of employers with less than 500 employees up to ten (10) days of paid sick leave when the employee cannot work or work remotely for one of the following reasons:

  1. The employee is subject to federal, state, or local quarantine or isolation order;
  2. The employee has been advised by a health care provider to self-quarantine;
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. The employee is caring for a person subject to a federal, state, or local quarantine or isolation order or who has been advised by a health care provider to self-quarantine;
  5. The employee is caring for a son or daughter of the employee whose school or day care is closed or the childcare provider is unavailable due to the COVID-19 public health emergency;
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, the Secretary of the Treasury, and/or the Secretary of Labor.         

Paid Leave

Employers with less than 500 employees must provide full-time employees with up to eighty (80) hours of paid leave for a qualifying reason. A part-time employee’s leave entitlement is based on the number of hours the part-time employee works, on average, over a two-week period.  If the employee’s normal hours scheduled are unknown, or the part-time employee’s schedule varies, the employer should use a six-month average to calculate the average daily hours. Alternatively, if the employee has not worked for the employer for six months, the employer should use the number of hours the employer and employee agreed the employee would work upon being hired. Finally, if there is no such agreement, the employer should calculate the appropriate number of hours of leave based on the average hours worked per day the employee was scheduled to work over the entire time of his/her employment. The paid leave is to be paid at the employee’s regular rate of pay up to a limit of $511 per day and $5,110.00 in total for the employee’s own use of the leave (numbers 1-3 above).  The paid leave is to be paid at 2/3 the employee’s regular rate of pay up to a limit of $200 per day and $2,000.00 in total to care for others and for any other substantially similar condition (numbers 4-6 above).

Can Be Used In Conjunction With EFMLEA

Employees qualifying for both EFMLEA and EPSLA can use the paid leave under the EPSLA to cover the unpaid 10-day period under the EFMLEA, provided that the employee is eligible for both leaves.

Tax Credit

Employers can receive a refundable tax credit equal to 100% of the qualified sick leave wages they pay for each calendar quarter pursuant to the EPSLA. The tax credit is allowed against the employer portion of Social Security taxes.

Please keep in mind that many details, such as how need for the leave will be documented and possible exemptions via regulations for certain health care workers and small businesses, as well as other matters, have not been finalized.  Expect that additional nuances and clarifications will be forthcoming in the days and weeks ahead.

“Although a previous version of this client alert reported that the effective date was April 2, 2020, which was based on the statute providing that it would go into effect not later than fifteen (15) days following the enactment of the FFCRA,  the United States Department of Labor (DOL) has since announced that the statute will become effective April 1, 2020.  However, on March 24, 2020, the DOL issued a Non-Enforcement Bulletin, indicating that it would not seek an enforcement action against employers who do not comply through April 17, 2020, as long as the employer acts “reasonably” and in “good faith.”

Rina Russo is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at rrusso@walterhav.com or at 216-928-2928.

Ohio Expands Unemployment Benefits to Address Evolving COVID-19 Situation


March 16, 2020

Eric Johnson

March 16, 2020 

Through Executive Order on March 15, 2020, Governor Michael DeWine announced an expansion of Ohio’s unemployment benefits to address the evolving COVID-19 situation.  Announced in conjunction with the state’s shutdown of bars and restaurants impacting hundreds of thousands of employees, the Governor’s Executive Order specifically addressed the following issues:

Layoff Due to Lack of Work. 

So long as other eligibility requirements are satisfied, employees who are laid off due to lack of work from the coronavirus’ impact on bar and restaurant operations will be eligible for unemployment insurance benefits.

Waiver of Waiting Period.

The Governor indicated that the normal one-week waiting period prior to the receipt of unemployment benefits will be waived.

Eligibility Based on Self-Quarantine.

In most cases, an asymptomatic employee who determines to self-quarantine would not be eligible for unemployment benefits.  Under Ohio law, unemployment benefits are available to individuals who are totally or partially unemployed due to no fault of their own.  In this example, the individual is choosing not to work and, therefore, would be ineligible.  However, the facts of each circumstance are important to determine eligibility.   For example, eligibility may depend upon specific facts such as whether the self-quarantine was truly the employee’s choice or whether an employee was permitted to work remotely.

Eligibility Based on Mandatory Quarantine.

Unlike the situation of voluntary self-quarantine above, if an employee is in mandatory quarantine – through the employer’s requirement or through a public health organization determination – because of a suspicion of having the coronavirus, the employee will be considered unemployed.  In these situations, the employee need not be actively seeking work in order to qualify for benefits.

Impact Upon Employers.

In the executive order, Governor DeWine allows unemployment benefit charges incurred following a coronavirus-related business shutdown to be mutualized for contributory employers.  Reimbursing employers will follow existing charging requirements under Ohio Revised Code 4141.  In addition, the Ohio Department of Job and Family Services will waive penalties for late reporting and payments during Ohio’s emergency declaration period.

Eric Johnson is chair of the Labor and Employment Law group at Walter |Haverfield. He can be reached at ejohnson@walterhav.com or at 216-928-2890.