Updated COVID-19 Guidance for Employers

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Rina RussoMax RiekerMarch 15, 2020

The coronavirus (COVID-19) crisis is evolving on a daily basis. On March 11, 2020, the World Health Organization (WHO) has declared the outbreak a pandemic. Government agencies, businesses, and employers are all struggling to react as effectively as possible.

This guidance is based on currently known information surrounding COVID-19 and is subject to change should additional information develop. To date, the virus has manifested as a mild to severe fever, cough, sore throat, and difficulty breathing. Click here for guidance on symptoms from the Centers for Disease Control and Prevention (CDC). Symptoms generally appear between two and 14 days from exposure. Mortality rates have been higher among older adults – particularly those with certain preexisting conditions such as heart and respiratory illnesses.  COVID-19 is highly contagious and is believed to be spread both person-to-person and through touching surfaces which have the virus on them.

In Ohio, as well as other states, public health authorities have indicated that there is now “community spread” of COVID-19. According to the CDC, “community spread” means that individuals in an area have been infected with the virus that have no relevant travel history or contacts with a person known to be infected with COVID-19. Due to a certain number of community spread cases being identified in Ohio, public health experts believe that at least 1% of Ohio’s population is already infected with the virus. Furthermore, Ohio public health officials indicated that the number of confirmed cases is likely to double every six days until the crisis is abated.

Any employer’s first concern should be with keeping its employees safe during the pandemic.  This client alert attempts to address many of the basic questions employers may have. However, this information will likely change with the passage of additional federal, state, and local laws aimed at addressing the crisis, and will be updated from time to time on our website.

WHAT DOES OSHA RECOMMEND?

The Occupational Safety and Health Administration (OSHA) recently released COVID-19 guidance. Here are a few simple rules of thumb that public health officials are recommending to further workplace safety:

  • If you have not done so already, reinforce basic handwashing, sneezing, and coughing etiquette with employees.
  • Provide alcohol-based hand sanitizer in the workplace, if possible.
  • Take steps to regularly clean frequently touched surfaces.
  • Practice social distancing in the workplace.
  • Keep symptomatic employees out of the workplace.
  • Limit employee travel.
  • Do not plan or attend in-person meetings or events with a significant number of participants.
  • Permit employees to work from home to the extent possible and practicable.

CAN WE RESTRICT OR PROHIBIT BUSINESS TRAVEL TO AFFECTED COUNTRIES OR AREAS?

Employers can limit or prohibit business travel to affected countries or areas. Employers should regularly consult the CDC Travel Health Notices and the State Department Travel Advisories to determine what travel should be avoided.

CAN WE PROHIBIT EMPLOYEES FROM TRAVELING FOR PERSONAL REASONS?

If personal travel is to a “high risk” country or area per CDC guidance, the employer may advise the employee about the risks of travel, and a possible 14-day quarantine upon return.  Additionally, while the employer cannot prohibit the travel, the employer may deny time off for an employee’s personal travel, as long as the denial is based on the high risk destination, the business cost of any resulting quarantine thereafter, or other legitimate business reasons, and not on the national origin of the employee or other discriminatory reason.

 CAN WE REQUIRE EMPLOYEES TO WORK FROM HOME?

Generally, yes, employers can require employees to work from home. Employers can and should determine what employees can perform their essential job duties from home. When requiring employees to work from home, employers should be careful not to base their decisions on any potentially discriminatory reason, such as age or disability. For example, employers should not require that only employees over the age of 60 work from home, even though COVID-19 is known to affect the over 60 population more severely.

WHAT ABOUT EMPLOYEES THAT CANNOT WORK FROM HOME?

Certain employees may not be able to work from home as their job duties require on-site attendance. For those employees, and in order to assist in the effort to slow the spread of COVID-19, employers can require employees to take the advice of public health officials and require employees to stay at least six (6) feet apart while at work, to the extent possible.  Additionally, employers may consider implementing staggered shifts so employee contact is kept at a minimum.

Employers should also encourage employees to frequently wash their hands, provide alcohol-based hand sanitizer and disinfectant wipes, amp up environmental cleaning, regularly clean and disinfect frequently touched surfaces and objects. Employers should aim to not plan or require in-person attendance at meetings or events with a significant number of participants.

CAN AN EMPLOYER REQUIRE A SICK EMPLOYEE TO STAY HOME?

Yes. If an employee has symptoms of COVID-19 or an employer is aware that an employee has contracted COVID-19, the employer can send the employee home and require that the employee stay home until recovered. During previous infectious disease crises, the Equal Employment Opportunity Commission (EEOC) has expressed that requiring employees to go home is not disability-related if an employee was symptomatic.

CAN AN EMPLOYER TAKE AN EMPLOYEE’S TEMPERATURE AT THE WORKPLACE?

As a practical matter, a person may be infected with COVID-19 and not have a fever. Thus, taking an employee’s temperature is not necessarily a reliable indicator of whether he or she poses a risk to the workforce. That being said, there are legal restrictions to taking an employee’s temperature in the workplace. The EEOC considers this a medical examination under the Americans with Disabilities Act. The law prohibits an employer from requiring a medical examination and making a disability-related inquiry unless (1) the examination is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a direct threat to the health or safety of the employee or others and cannot otherwise be eliminated or reduced through a reasonable accommodation.

According to the EEOC’s prior guidance with regards to pandemic influenza (which it recently referred employers to with regards to the COVID-19 pandemic), if the virus becomes widespread in the employer’s community or when symptoms become more severe than the seasonal flu or the flu during the H1N1 pandemic of 2009, such temperature checks may be permissible.

In any event, employers can encourage employees to monitor their own temperature to ensure they are exhibiting no symptoms of COVID-19 prior to reporting to work.

WHAT DO WE DO IF AN EMPLOYEE TESTS POSITIVE FOR COVID-19?

The most important thing an employer can do if an employee has tested positive is to make sure the employee is separated from the workforce and remains home until recovered. All other employees who were exposed to the infected employee for at least 14 days prior to symptom manifestation should likewise be sent home for at least the full incubation period. Some inquiry may be required in order to properly identify individual employees at risk. During such inquiry, employers should not identify the infected employee or employees.

WHAT IF WE SUSPECT THAT AN EMPLOYEE HAS BEEN EXPOSED TO COVID-19?

If you reasonably suspect that an employee has COVID-19, but have no such confirmation, you may ask an employee about potential exposure as exposure is not a medical condition. If the employee admits to being exposed, you may require the employee to go home and not report back to work for a period of 14 days.

If an employee is displaying respiratory symptoms of COVID-19 or admits to having such symptoms, employers should separate the employee from others immediately and send the employee home.

CAN WE REQUIRE MEDICAL CERTIFICATION BEFORE AN EMPLOYEE RETURNS TO WORK AFTER BEING DIAGNOSED WITH COVID-19?

Yes, generally employers can ask for a return to work statement from a medical provider before having the employee return to work, as long as it is the employer’s practice to require such a statement. Certain state and local laws may prohibit such a request based on the number of days absent.

 IF AN EMPLOYEE IS SENT HOME OR DOES NOT WORK BECAUSE OF COVID-19, DO WE STILL HAVE TO PAY THEM?

For hourly workers under the Fair Labor Standards Act (FLSA), the general answer is “no.”  Employers are only required to compensate employees for hours worked. However, salaried workers may be required to be paid for the entire week for any workweek in which they perform any work for their employer. If the exempt employee does not perform any work for his/her employer during a particular workweek, the employer does not have to pay the employee his/her salary for that workweek.

Employers may be required to compensate employees for accrued sick leave, vacation leave, or other paid time off pursuant to established policy.

Be mindful of employment contract and collective bargaining agreement (CBA) provisions dealing with wage obligations and their interaction with various time away from work designations. If an employee is under contract or subject to a CBA, those contractual provisions may control.

Additionally, it is expected that United States Congress will pass a new law requiring paid sick leave for various reasons related to the COVID-19 pandemic. We will update our guidance on this issue once such law is in effect.

WHAT ABOUT THE FAMILY AND MEDICAL LEAVE ACT?

Contracting COVID-19 may be an FMLA-qualifying event if the time off otherwise qualifies under the statute. The basic precepts of the FMLA are unchanged as a result of the outbreak. Employers and employees must still go through the standard FMLA procedures and analysis.

Employees are not legally entitled to avail themselves of FMLA leave in an effort to stay home to avoid contracting a communicable disease. However, given the unusual nature of the COVID-19 situation, employers may be well-served to create certain paid or unpaid time off from the workplace that will not result in job loss or adverse action, regardless of FMLA or other state or local leave 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 .

Max Rieker is an associate at Walter |Haverfield who focuses his practice on labor and employment law. He can be reached at mrieker@walterhav.com or at 216-928-2972. 

Ohio Expands Unemployment Benefits to Address Evolving COVID-19 Situation

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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. 

COVID-19 and the Workplace: The Employer Response Plan

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Rina RussoMax RiekerMarch 10, 2020

As COVID-19 (coronavirus) spreads into Ohio, it’s important for employers to be prepared in their response to employees who are sick and be ready for the impact of the virus on the workplace.

According to the Centers for Disease Control and Prevention (“CDC”), typical COVID-19 symptoms include fever, cough, and shortness of breath, which seem to present within 2-14 days after exposure. The potentially long incubation period makes prompt detection more difficult.  The illness is spread both by close person-to-person contact and through touching surfaces or objects that have the virus on them and then touching one’s own eyes, nose, or mouth.

At this time, there are now several confirmed cases in Northeast Ohio. Additional testing of individuals may also reveal more cases in Ohio and around the country. The only way to conclusively determine whether a particular respiratory illness is COVID-19 is through laboratory testing.

WHAT SHOULD EMPLOYERS DO?

Send Sick Employees Home

If an employer observes an employee exhibiting the symptoms of COVID-19, the employer should immediately separate and send the employee home. At this point, there is no way for an employer to reliably or independently verify that an employee has COVID-19 without obtaining a positive laboratory test result.

According to the Equal Employment Opportunity Commission (“EEOC”) pandemic guidance, taking an employee’s temperature is considered a “medical examination” under the Americans with Disabilities Act (“ADA”). Further, as a high temperature is not present in all individuals infected with COVID-19, requiring employees to submit to a temperature check is not advised at this time. Instead, all employees exhibiting symptoms of respiratory illness should be sent home.

Affected employees should be permitted to use applicable paid or unpaid time off in accordance with the employer’s policies and any collective bargaining agreement that may be in place.  Employers should also evaluate other possible paid or unpaid leave time available to sick employees pursuant to applicable federal, state, or local laws, subject to the requirements of the Fair Labor Standards Act (FLSA). Generally, non-exempt employees must only be paid for hours worked. However, exempt employees must be paid for an entire workweek for which they perform any work for their employer.

Encourage Good Hygiene and Enforce Workplace Cleaning

 Employers should remind employees to practice respiratory etiquette by coughing or sneezing into an elbow, hand, or tissue.  Employees should be reminded to thoroughly wash their hands and avoid touching their eyes, noses, or mouths.

Employers should continue vigilant workplace cleaning and disinfecting practices to eliminate viruses and other bacteria from surfaces and objects.

 Practice Social Distancing When Possible

As medical experts promote social distancing in an effort to stop the spread of COVID-19, employers should consider whether employees can work remotely. While this may not be an option for all employees, employers should consider whether in-person meetings can take place remotely by phone or video conference. Employees that can perform their job duties remotely should do so. Where employees cannot perform their job duties remotely, employers can consider staggered shifts to limit close contact between employees.

Limit Business Travel

Employers should consider limiting, restricting, or postponing all non-essential business travel to affected countries. Employers should regularly consult the CDC Travel Health Notices and the State Department Travel Advisories to determine what travel should be avoided.

Have a Response Plan Ready

Employers need to be ready to implement a response plan should an outbreak be identified in their area. This plan must include communicating with all employees should an employee become ill with COVID-19, while keeping the employee’s identity confidential. All employees who worked closely with an infected employee should be sent home and kept from returning to work for a 14-day period to prevent spread of the infection. Employers should be ready to institute remote work or altered work schedules to ensure uninterrupted business operations to the extent possible.

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

Max Rieker is an associate at Walter |Haverfield who focuses his practice on labor and employment law. He can be reached at mrieker@walterhav.com or at 216-928-2972.

Families First Coronavirus Response Act: What it Means for Employers

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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.

Department of Labor Issues Required Families First Coronavirus Response Act Poster

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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.

 

Department of Labor Issues Regulations on Families First Coronavirus Response Act

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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.

 

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

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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.