United States Supreme Court Blocks OSHA’s Vaccine Mandate for Large Private Employers, But Allows Vaccine Mandate for Health Care Workers
A: On January 13, 2022, the United States Supreme Court blocked the Occupational Safety and Health Administration’s (OSHA) Vaccination and Testing Emergency Temporary Standard (ETS) for private employers with 100 or more employees. The ETS would have applied to approximately 84 million workers. The Court also, in a separate, but simultaneous ruling, allowed the Centers for Medicare & Medicaid Services’ vaccine mandate for health care workers to go into effect.
A: OSHA’s ETS required covered workers to receive a Covid-19 vaccine with an exception for workers who obtained a medical test each week at their own expense and on their own time, and also wore a mask each day. Neither OSHA nor Congress ever issued such a mandate. Many states and businesses challenged OSHA’s mandate in Courts of Appeals across the country. The Fifth Circuit entered a stay of the ETS. The stay was eventually lifted, and the mandate was allowed to take effect when the cases were consolidated before the Sixth Circuit. In an attempt for emergency relief from the Supreme Court, applicants argued that OSHA’s mandate exceeded its statutory authority and the Court agreed, once again staying OSHA’s vaccine mandate. The Supreme Court expressed concern as to the lack of historical precedent for such a mandate coupled with an expansion of OSHA’s breadth of authority to regulate public health. “Permitting OSHA to regulate the hazards of daily life-simply because most Americans have jobs and face those same risks while on the clock-would significantly expand OSHA’s regulatory authority without clear congressional authorization.” However, even though OSHA’s mandate made no distinction based on industry or risk of exposure, the Court noted that where the virus poses a special danger because of an employee’s job or workplace, more targeted regulations could be permissible.
A: In keeping with the idea of permissible targeted regulations, the Supreme Court also issued a separate decision allowing the health care worker vaccine mandate. That mandate, issued by the Department of Health and Human Services (HHS), requires health care workers at facilities that receive Medicare or Medicaid funding to be vaccinated against COVID-19, absent a medical or religious exemption. The mandate faced a number of legal challenges, and enforcement was blocked in 24 states pursuant to federal district court injunctions. In contrast to the decision regarding OSHA’s large private employer mandate, the Supreme Court ruled that HHS may proceed with its health care worker vaccine mandate and stayed the injunctions blocking enforcement. HHS is responsible for ensuring the health and safety of patients who receive care through Medicare and Medicaid funds, and thus it may impose conditions on facilities receiving such funds. The Court explained that, given the highly contagious and dangerous nature of COVID-19 and the risk of transmission from health care workers to patients, HHS acted within its statutory authority to mandate vaccination of such workers.
A: As for next steps, technically, the Supreme Court only decided if the mandates would go into effect. However, the writing seems to be on the wall even though challenges are still pending before the courts of appeals. Also, private employers may still require vaccine and/or testing mandates in lieu of the Supreme Court’s ruling. Please consult one of our Labor and Employment attorneys before doing so.
Sixth Circuit Lifts Stay on Vaccine Mandate
A: On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued its Covid-19 Vaccination and Testing Emergency Temporary Standard (ETS) that compels private employers with 100 or more employees to implement mandatory COVID-19 vaccination policies or require unvaccinated employees to undergo regular testing and wear a face mask at work. The next day, the U.S. Fifth Circuit Court of Appeals issued a stay halting the implementation of the ETS pending judicial review, and it renewed that decision on November 12.
A: The challenges to the ETS, which were filed in federal courts across the country, were all consolidated for review in the Sixth Circuit. On December 17, the Sixth Circuit dissolved the Fifth Circuit’s stay, clearing the way for the ETS to go into effect and giving OSHA the authority to proceed with enforcement. In the 2-1 ruling, the Court concluded that the ETS was not only within OSHA’s statutory authority to address a “grave danger,” but was also necessary to address it.
A: Following the Sixth Circuit’s ruling, OSHA issued a news release regarding enforcement of the ETS. To allow employers sufficient time to comply, OSHA will not issue citations for noncompliance for any of the requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022. As to the specific requirements of the ETS and for which employers are affected, please see the prior client alert issued on November 4, 2021, entitled OSHA Issues Emergency Temporary Standard for Covid-19 Vaccination.
A: Opponents of the ETS are now seeking an emergency stay from the United States Supreme Court. Therefore, Employers should prepare to meet the enforcement deadlines set forth by OSHA and should also continue to monitor any ruling from the Supreme Court as to the legality of the ETS. Please contact Walter Haverfield’s Labor and Employment attorneys for questions as to implementation of written policies, ETS requirements for testing and face coverings, and OSHA enforcement deadlines.
OSHA Issues Emergency Temporary Standard for COVID-19 Vaccination
A: The ETS applies to private employers with 100 or more employees company-wide, including all full-time, part-time, and temporary employees. It does not cover public employers in states, such as Ohio, that do not have OSHA-approved State Plans. It does not cover employers already subject to the federal contractor requirements or the Healthcare ETS.
A: Covered employers must either (1) implement a mandatory COVID-19 vaccination policy, or (2) implement a policy that gives employees the choice of vaccination or weekly testing and wearing a face mask at work.
A: The ETS will be published in the Federal Register and effective tomorrow, November 5, 2021, but employers will have 30 days to implement most of the requirements, and 60 days to implement testing in lieu of vaccination if the employer provides that option.
A: No. The requirements do not apply to employees who work from home, work exclusively outdoors, or do not report to a workplace where others are present.
A: Yes. Employers must provide a reasonable amount of paid time off (up to 4 hours) for employees to receive each primary dose of the vaccine and a reasonable amount of time and paid sick leave to recover from side effects of the vaccine.
A: No. Under the ETS, employers may require employees who opt for testing in lieu of vaccination to cover any costs related to getting themselves tested. Please note that although the ETS does not require employers to pay for such testing, it may be required by other laws, regulations, or the terms of a collective bargaining agreement.
A: Employers must require employees to promptly notify them of a positive test or diagnosis. Once aware of such a positive test or diagnosis, employers must remove the employee from the workplace immediately and keep them out of the workplace until return to work requirements are met. Any work-related COVID fatalities or in-patient hospitalizations must be reported to OSHA.
A: Covered employers should start developing their COVID-19 policies and procedures immediately, as they will need to be in place by December 5, 2021. Employers will also need to collect information about employee vaccination status in order to implement and enforce their policies. In addition, employers should prepare a communication plan to deliver information to employees and address questions about the ETS, COVID-19 vaccines, and the employer’s policies.
Biden Announces Employee COVID-19 Vaccination Requirements for Large Private Sector Employers, Federal Contractors, and Most Healthcare Employers
A: On September 9, 2021, President Biden announced his six-pronged Path Out of the Pandemic COVID-19 Action Plan containing vaccination and testing requirements applicable to most federal, private, and healthcare employers. The Plan directs the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) to provide further details on the new requirements. Meanwhile, an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors directs the Federal Workforce Task Force (“Task Force”) to issue guidance outlining requirements for federal contractors. In addition, the Plan directs the Centers for Medicare & Medicare Services (“CMS”) to expand its emergency rule requiring nursing homes to implement mandatory employee vaccinations to include all health care facilities that receive Medicare and Medicaid reimbursements.
President Biden directed OSHA to create a rule for private employers of 100 or more employees to require all employees to be fully vaccinated against COVID-19 or, alternatively, to undergo testing on at least a weekly basis. These employers with 100 or more employees will also be required to offer paid leave to employees to cover the time necessary to get vaccinated and recover from any adverse vaccine-related side effects. Once these new requirements take effect, employers may face fines of up to $14,000 per violation for each failure to comply.
In the coming weeks, it is expected that OSHA will provide additional information concerning this proposed rule, including when the rule and its enforcement will begin. Until the proposed rule is released, however, many details remain unclear. For example, it is uncertain how the new vaccination-related paid leave will be administered or how employers will be expected to go about confirming that their employees are fully vaccinated.
The Executive Orders require employees of the executive branch of the federal government and certain employees of federal contractors to be vaccinated, but without a weekly testing option unless the employees receive an approved exemption. The Biden administration has announced that unvaccinated federal employees will have about 75 days to get vaccinated.
Federal contractors will need to include a contractual clause in their federal contracts requiring compliance with the pandemic protocols to be issued by the Task Force. The Executive Order gives the Task Force until September 24, 2021 to issue further written guidance for federal contractors in order to further explain the requirements involving federal contractors as well as any exceptions. By October 15, 2021, the new clause implementing the requirements of the Executive Order and the Task Force guidance must be inserted into covered contracts that are issued, extended or renewed on or after such date.
A: Finally, the Biden Administration will mandate COVID-19 vaccination of all staff within Medicare and Medicaid participating facilities as a condition for continued federal funding. Specifically, existing emergency regulations requiring vaccinations for nursing home workers will be expanded to include all health care facilities certified to participate in the Medicare and Medicaid programs, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This mandate will apply to staff who are not involved in direct patient care, including clerical staff. CMS has indicated that the interim final rule implementing this vaccine mandate will be issued in October.
Although more details will be forthcoming, employers directly impacted by these requirements should start planning for the COVID-19 vaccination and testing policies and procedures they will need to implement or revise in order to ensure compliance and avoid any potential business disruptions or penalties. Employers will need to effectively navigate both the legal and practical issues of vaccine mandates, including obtaining and tracking vaccination status, testing policies, reasonable accommodations for disabilities and sincerely held religious beliefs, wage and hour compliance, confidentiality issues, and bargaining with their employee representatives of any unionized workforce. And, beyond mere compliance, employers implementing vaccination mandates and associated policies should develop a communications plan designed to encourage employee participation and mitigate any negative impacts on morale.
Guidance on this topic is rapidly evolving. If you have questions about how to ensure your policies comply with these new mandates, please contact your Walter Haverfield attorney.
The EEOC Provides Further Clarification on COVID-19 Issues and Re-Affirms That Employers May Require Employees to Get Vaccinated
A: 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.
A: According to EEOC guidance, 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).
A: 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.
A: Regardless of whether an employer makes vaccination mandatory, the EEOC 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.
A: 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.
A: 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.
Legislative Changes to Employee Benefit Law: Federal Funding for COBRA and Flexible Spending Account Relief
A: 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.
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 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.
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.
- Model ARP General Notice and COBRA Election Form
- Model COBRA Continuation Coverage Notice – Extended Election Periods
- Model Alternative Notice of ARP Continuation Coverage Election Notice
- Model Notice of Expiration of Premium Assistance
- Summary of the COBRA Premium Assistance Provisions of ARPA
Employers Can Get Tax Relief for Certain Paid Leave Expenses
A: Tax relief is available for employers. It’s limited and only available for a small window of time, but it’s tax relief nonetheless. Last month, the IRS issued guidance explaining how small and midsize employers can claim tax credits under the American Rescue Plan Act of 2021 (“Act”).
A: The Act allows employers to claim refundable tax credits to obtain reimbursement for the cost of providing paid sick and family leave to employees due to COVID-19. Employees may also have taken leave to receive COVID-19 vaccinations or recover from a condition related to vaccinations. The employees must not have been able to work or telework due to COVID-19-related reasons.
A: The “catch” is that the tax credits are only available for paid leave taken from April 1, 2021, through September 30, 2021.
A: The paid leave credits are tax credits against the employer’s share of the Medicare tax. The tax credit for paid sick leave wages is equal to the sick leave wages paid for COVID-19-related reasons for up to two weeks (80 hours), limited to $511 per day and $5,110 in the aggregate, at 100 percent of the employee’s regular rate of pay. A tax credit is also available for paid family leave. The amount of the credits may increase depending on health plan expenses and contributions due to collectively bargained benefits.
A: Employers can use the federal employment tax return forms (Form 941) to report the requisite information. This information consists of the total paid sick and family leave wages, along with the eligible health plan expenses, collectively bargained contributions, and the employer’s share of social security and Medicare taxes on paid leave wages. Set-aside options and advances are available as well.
A: An overview of the tax credit is available here.
The Department Of Labor Issues Guidance Regarding the Compensability of Certain Travel Time for Employees Who Telework Part of the Day
The Department of Labor (DOL) Wage and Hour Division 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.
A: 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.”
A: 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.
The EEOC Confirms That Employers May Require Employees to Receive the COVID-19 Vaccine, With Exceptions
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.
A: 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.
A: 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 ADA.
A: The EEOC made clear that it will not be a violation of the Genetic Information Nondiscrimination Act (GINA) to require employees to receive COVID-19 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.
Coronavirus Relief Bill Signed Into Law
A: 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.
A: 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.
FFCRA Is Set to Expire on December 31, 2020
A: In March, Congress enacted the Families First Coronavirus Response Act (“FFCRA”) in response to the spread of the novel coronavirus and the illness it causes, COVID-19. Generally, the FFCRA requires public employers and private employers with fewer than 500 employees to offer employees two types of paid leave benefits for certain reasons related to COVID-19: (1) up to 80 hours of emergency paid sick Leave (“EPSL”) and (2) up to 12 weeks of expanded family medical leave (“EFML”).
A: When Congress passed the FFCRA, it set the paid sick leave entitlements to expire on December 31, 2020. Although COVID-19 cases are on the rise in the United States, and a recent study suggested that FFCRA paid sick leave has been effective in reducing COVID cases by nearly 400 cases per day, it is uncertain whether Congress will pass a bill extending the paid sick leave provisions of the FFCRA.
A: In May, the U.S. House of Representatives passed H.R. 6800 (“The Heroes Act”), which sought to extend paid sick leave under the FFCRA until the end of 2021. However, the U.S. Senate has not considered the Heroes Act or proposed any other bill to do so. Because there has been an absence of congressional action, employers should begin planning as the FFCRA will expire at the end of the year.
A: Below are some key takeaways regarding what the FFCRA expiration might mean for your organization:
- Employees will not be entitled to receive EPSL or EFMLA after December 31, 2020.
Employers should communicate to employees that paid sick leave under the FFCRA will not be available after December 31, 2020. Employers should, however, continue to allow eligible employees to take paid sick leave under the FFCRA through and including December 31, 2020.
- Private employers will not receive tax credits after December 31, 2020.
While employers may continue to offer COVID-19-related paid sick leave programs past the FFCRA expiration date, eligible employers that do so will not receive tax credits from the federal government.
- Employee balances of EPSL and EFML will expire after December 31, 2020.
On January 1, 2021, employees will lose any balance of unused EPSL and EFML. Employees are not entitled to a “payout” of unused paid sick leave under the FFCRA.
Depertment of Labor’s Updated Temporary Rule on Families First Coronavirus Response Act
A: 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.
A: 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.
- 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.
- 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.
A: 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.
- 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.
- 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.
A: 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.
- The updated temporary rule provides examples of types of positions that will qualify for the exemption and those that will not.
- 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.
A: 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.
A: The updated temporary rule went 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.
Recording Cases of Coronavirus in the Workplace
A: Yes, the Occupational Safety and Health Administration’s (OSHA) updated guidance requires employers to investigate whether a particular case of coronavirus is work-related. If the case meets certain criteria to deem the case a work-related case, employers must report the case to OSHA.
A: 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.
Families First Coronavirus Response Act
A: President Trump signed the Families First Coronavirus Response Act (FFCRA) into law on March 18, 2020. It 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.
A: On March 25, 2020, The Department of Labor (DOL) announced that all covered employers (employers with under 500 employees and most public employers regardless of size) must post a 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. 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 is located here. As reported on the notice, the DOL has interpreted the FFCRA to have an effective date of April 1, 2020.
A: Both of these provisions go into effect on April 1, 2020 and are expected to remain in place until December 31, 2020.
A: The provisions of the EFMLEA and EPSLA apply to employers with less than 500 employees.
A: 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.
A: 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), 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. Also, unlike the FMLA, employees are eligible for this partially paid leave after working for their employer for thirty (30) days.
A: During the first ten (10) 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 Emergency Paid Sick Leave Act (EPSLA) to obtain pay for the first 10 days of the EFMLEA leave, provided that the employee qualifies for leave under EPSLA.
A: Similar to the Family and Medical Leave Act (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.
A: 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.
A: 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.
- The employee is subject to federal, state, or local quarantine or isolation order
- The employee has been advised by a health care provider to self-quarantine
- The employee is experiencing symptoms of COVID-19 (coronavirus) and is seeking a medical diagnosis
- The employee is caring for a person subject to a federal, state, or local quarantine or isolation order or has been advised by a health care provider to self-quarantine
- 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
- 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
A: Employers with fewer than 500 employees must provide full-time employees with up to eighty (80) hours of paid leave for a qualifying reason. Employees who work a part-time or an irregular schedule are to be paid based on the average number of hours the employee worked for the six months prior to taking the leave. However, part-time employees who have worked for less than six months are to be paid based on the average number of hours the employee would normally be scheduled to work over a two-week period. 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 in total for the employee’s own use of the leave (i.e. the employee is subject to federal, state, or local quarantine or isolation order, the employee has been advised by a health care provider to self-quarantine, or the employee is experiencing symptoms of COVID-19 (coronavirus) and is seeking a medical diagnosis.) 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 in total to care for others and for any other substantially similar condition (i.e. the employee is caring for a person subject to a federal, state, or local quarantine or isolation order or has been advised by a health care provider to self-quarantine, the employee is caring for a son or daughter whose school or day care is closed or the childcare provider is unavailable due to the COVID-19 public health emergency, or 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.).
A: 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.
A: 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.
A: 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.
A: The FFCRA poster can be viewed here.
A: The notice contains basic information about the types of leave certain employees are entitled to under the Families First Coronavirus Response Act (FFCRA). Further information about the required leave provisions under the FFCRA can be located here.
DOL Temporary Regulations – Families First Coronavirus Response Act (FFCRA)
A: 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.
A: 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.
A: 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.
A: 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
A: 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.
A: 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.
A: 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.
A: 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.”
A: 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.
A: 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.
A: 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.
EEOC Updated Guidance
A: 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.
A: 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.
A: 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.
A: 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.
A: 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.
A: 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.
Working from Home
A: 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.
A: 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.
A: 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.
A: Send sick employees home, enforce workplace cleaning, practice social distancing when possible, limit business travel and have a response plan ready.
A: 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.
A: 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. However, on Wednesday, March 18, 2020, Ohio Governor Mike DeWine requested that any business that remains open needs to take the temperatures of all employees daily. Employers in Ohio should consider DeWine’s directive, any subsequent orders or directives from government authorities, and consult with legal counsel as needed regarding this issue.
Furthermore, employers can also encourage employees to monitor their own temperature to ensure they are exhibiting no symptoms of COVID-19 prior to reporting to work.
A: 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.
A: 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.
A: 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.
Paid Time Off
A: 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.
Prevention in the Workplace
A: 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.
A: Employers can and should 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.
A: Employers need to implement a response plan which 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.
A: 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.
A: If personal travel is to a “high risk” country or area per the Centers for Disease Control and Prevention 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.