Tag Archives: employment attorneys

DOL Answers More Questions About Paid Sick Leave and Expanded Family and Medical Leave Under the FFCRA

On April 6, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued yet another series of questions and answers to provide additional guidance regarding the protections and relief offered by the new Families First Coronavirus Response Act (FFCRA). The DOL also reorganized its FFCRA questions page by categories (definitions, eligibility, coverage, application, and enforcement), in addition to its questions and answers by number.

As noted in our recent blog post, the FFCRA provides expanded paid and unpaid family and medical leave broader than the Family and Medical Leave Act of 1993 (FMLA) and paid sick leave to certain employees affected by COVID-19. In addition, it provides help for individuals and businesses impacted by the pandemic—like reimbursement through a refundable tax credit available to private employers. The FFCRA became effective April 1, 2020, and will expire at the end of the year. It is enforced by the WHD. Continue reading

Unemployment Provisions in the Coronavirus Aid, Relief, and Economic Security Act

As businesses in Florida make decisions on how to move forward during the COVID-19 public health emergency, many businesses are weighing the effects of a layoff or furlough on their employees’ ability to secure unemployment benefits. The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act—which was signed into law the afternoon of March 27, 2020—includes provisions that address these issues. These provisions are referred to as the Relief for Workers Affected by Coronavirus Act.

Before addressing how the CARES Act may temporarily affect unemployment, it is important to understand what steps the State of Florida has already taken. At this stage, Florida has temporary made individuals who have a COVID-19-related unemployment situation eligible for reemployment assistance (the name Florida gives to unemployment benefits). Specifically, under current Florida guidance, the following persons are currently eligible for COVID-19 unemployment benefits:

  • People ordered to quarantine by a medical professional
  • Those laid off or sent home without pay for an extended period by their employer due to COVID-19
  • Those caring for an immediate family member with the virus.

Continue reading

The Notice Required by the Families First Coronavirus Response Act is Now Available for Download

This afternoon the U.S. Department of Labor’s Wage and Hour Division made the Notice that employers covered under the Families First Coronavirus Response Act (“FFCRA”) are required to post available on its website. There is a special notice for federal employees.

In addition, clarification was provided on how to post notices if employees are working remotely, whether posting in other languages is required, and where to check for revisions to the notice. The following questions and answers address these and other questions that may arise regarding the posting requirement in the FFCRA.

1. Where do I post this notice? Since most of my workforce is teleworking, where do I electronically “post” this notice?
Each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.

2. Do I have to post this notice in other languages that my employees speak? Where can I get the notice in other languages?
You are not required to post this notice in multiple languages, but the Department of Labor (Department) is working to translate it into other languages.

3. Do I have to share this notice with recently laid-off individuals?
No, the FFCRA requirements explained on this notice apply only to current employees.

4. Do I have to share this notice with new job applicants?
No, the FFRCA requirements apply only to current employees. Employers are under no obligation to provide the notice of those requirements to prospective employees.

5. Do I have to give notice of the FFCRA requirements to new hires?
Yes, if you hire a job applicant, you must convey this notice to them, either by email, direct mail, or by posting this notice on the premises or on an employee information internal or external website.

6. If my state provides greater protections than the FFCRA, do I still have to post this notice?
Yes, all covered employers must post this notice regardless of whether their state requires greater protections. The employer must comply with both federal and state law.

7. I am a small business owner. Do I have to post this notice?
Yes. All employers covered by the paid sick leave and expanded family and medical leave provisions of the FFCRA (i.e., certain public sector employers and private sector employers with fewer than 500 employees) are required to post this notice.

8. How do I know if I have the most up-to-date notice? Will there be updates to this notice in the future?
The most recent version of this notice was issued on March 25, 2020. Check the Wage and Hour Division’s website or sign up for Key News Alerts to ensure that you remain current with all notice requirements.

9. Our employees must report to our main office headquarters each morning and then go off to work at our different worksite locations. Do we have to post this notice at all of our different worksite locations?
The notice needs to be displayed in a conspicuous place where employees can see it. If they are able to see it at the main office, it is not necessary to display the notice at your different worksite locations.

10. I am running out of wall space. Can I put the required notices in a binder that I put on the wall?
No, you cannot put federal notices in a binder. Generally, employers must display federal notices in a conspicuous place where they are easily visible to all employees—the intended audience.

11. We have break rooms on each floor in our building. Do I have to post notices in each break room on each floor or can I just post them in the lunchroom?
If all of your employees regularly visit the lunchroom, then you can post all required notices there. If not, then you can post the notices in the break rooms on each floor or in another location where they can easily be seen by employees on each floor.

We are available to assist employers and answer questions related to the FFCRA and other pandemic-related concerns.

Jennifer Fowler-Hermes
Jfowler-hermes@williamsparker.com
(941) 552-2558

Modification or Termination of Elective 401(k) Contributions in Response to Coronavirus and Other 401(k) Issues

At Williams Parker we continue to work to provide businesses with the information they need to make difficult decisions in this uncertain time. We have received many questions regarding how business decisions related to COVID-19 may impact employees’ 401(k) plans. As part of our extended team through Ally Law, our international alliance of law firms, we are able to partner with experienced attorneys in a wide-range of legal areas for the benefit of our clients. The following two-part advisory provides important information regarding COVID-19 and healthcare benefits from Varnum, which is our Ally law firm in Michigan.

For more information about Ally Law, visit williamsparker.com/global-services.

Employees’ Healthcare Coverage and Unpaid Leave, Layoff, or Furlough

At Williams Parker we continue to work to provide businesses with the information they need to make difficult decisions in this uncertain time. We have received many questions regarding how business decisions related to COVID-19 may impact employees’ healthcare benefits. As part of our extended team through Ally Law, our international alliance of law firms, we are able to partner with specialists in a wide-range of legal areas for the benefit of our clients. This advisory provides important information regarding COVID-19 and healthcare benefits from Varnum, which is our Ally law firm in Michigan.

For more information about Ally Law, visit williamsparker.com/global-services.

 

UPDATED: Families First Coronavirus Response Act: Employment Law Guidance Specific to Healthcare Providers

 

 

 

 

This post was updated March 29, 2020. Updates are shown in red. 

This post discusses the changes to the Family and Medical Leave Act (“FMLA”) created by the recently passed Families First Coronavirus Response Act for employers in the healthcare industry. For information about potential business financial assistance and tax issues related to the COVID-19 coronavirus (“COVID-19”) epidemic, make sure to review our firm’s Business and Tax Blog, which is being updated to identify opportunities for businesses.

We will continue to update this post as there are new developments.

What is in this new Families First Act?
The Families First Act requires that in the face of the COVID-19 epidemic, covered employers must provide certain paid FMLA and sick leave to certain private employers with fewer than 500 employees and public employers.

When does the new Families First Act go into effect?
The new rules go into effect on April 1, 2020.

Are there any different rules for employers who operate in the healthcare industry?
To some extent yes. The Families First Act may allow an employer of an employee who is a “healthcare provider” or “emergency responder” to elect to exclude that employee from the application of the paid FMLA and sick leave portions of the law.

Does this law mean that each employee of an employer who operates in the healthcare industry is exempt from these new leave rights?
At the moment, no. It would be consistent with the Families First Act’s purpose to include in the definition of healthcare provider (and, thus, the exemption) all employees needed by the “healthcare provider” or “emergency responder” to provide care during the public health emergency. However, under the definition discussed below, it does not appear that an employer can elect to exempt any employee other than someone who would be considered a “healthcare provider” or “emergency responder” unless the Department of Labor (“DOL”) expands the definition. Thus, for the moment, employees who would not be considered “healthcare providers” or “emergency responders,” such as receptionists, cleaning staff, bookkeepers, or other office staff members, are not exempted from this law.

 

Which employees would be considered a “healthcare provider”? (Updated March 29, 2020)
Based on this new Families First Act’s text, the FMLA’s prior definition of who is a “healthcare provider” applied. This definition was usually narrow and did not effectuate the purpose of the act. On March 28, 2020, the DOL provided clarification in response to question 56 of its Questions and Answers, and stated:

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is 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, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Although this definition is not currently set forth in the FFCRA, and is not yet included in regulations issued by the DOL, this guidance from the DOL should considered persuasive until such time that regulations are released by the DOL.

What about CNAs, Nurses, Activities Directors, Physical Therapists, and other individuals who directly interact and provide care to patients? (Updated March 29, 2020)
Based on the DOL’s March 28, 2020, response to who may be excluded by their employer from paid sick leave and/or expanded family and medical leave, such persons may be excluded. Keeping in mind that the DOL has strongly encouraged employers to be judicious when using this definition to exempt healthcare providers from the provisions of the FFCRA.

Does this law mean that each employee of an employer who operates in the healthcare industry may be exempt from these new leave rights? (Updated March 29, 2020)
Yes. However, the DOL has strongly encouraged employers to be judicious when making decisions to exempt health care providers from the provisions of the FFCRA.

Which employees would be considered an “emergency responder”? (Updated March 29, 2020)
The Families First Act does not define the phrase “emergency responder.” However, on March 28, 2020, the DOL providing the following definition:

[A]n emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, 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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Although this definition is not currently set forth in the FFCRA, and is not yet included in regulations issued by the DOL, this guidance from the DOL should considered persuasive until such time that regulations are released by the DOL.

What steps would an employer need to take to elect to exclude a “healthcare provider” or “emergency responder” employee from this new law?
Unknown at this time, and the answer may depend on agency guidance.

For the time being, employers may wish to take steps somewhat similar to the ones that they would take under DOL guidance for “key employees,” i.e., salaried, eligible employees who are among the highest paid 10% of all employees at the worksite and for whom unpaid leave and job restoration would cause an employer substantial and grievous economic harm. Thus, like with “key employees,” employers may wish to provide a written notice to the employee at the time the employee gives notice of the need for leave. The notice would advise that the employee qualifies as a healthcare provider or emergency responder, and that the leave could not be allowed during this time.

Again, further guidance from the DOL likely will be needed to confirm the proper steps an employer must take.

For additional information regarding the healthcare industry specifically, and running a business during this pandemic, visit our COVID-19 resource page.

Updated by Jennifer Fowler-Hermes, who may be reached at (941) 552-2558.

John C. Getty
jgetty@williamsparker.com
(941) 329-6622

UPDATED: Addressing COVID-19: Employment Law Update and General Guidance for Employers

This post has been updated as of March 19 with the latest information available. Updates are noted in bold red text throughout. 

Given the ongoing concerns about the COVID-19 coronavirus (“COVID-19”) epidemic, employers in all fields want some practical guidance on how to address this situation. Regardless of field, employers should understand that there is a patchwork of intersecting laws that impact decisions they are and will be making as matters develop, touching on disease prevention safety steps, workplace attendance, wage and hour issues, leave rights and obligations, healthcare privacy, discrimination, harassment, and potential short-term layoffs.

We offer this general FAQ for the time being, which is based on the best information available as of today, March 19, 2020. It applies only to U.S. employers, primarily in Florida. Each situation will be fact-specific. As such, this FAQ may not fully address all questions an employer may have. For particular questions, we are happy to assist employers as they navigate through these turbulent times.

VALUABLE WEBSITES FOR EMPLOYERS TO MONITOR

The information we provide in this FAQ is as up-to-date as can be when it is posted and we will continue to provide updates as new information becomes available. The answers provided below represent a general overview; and moreover, the understanding of the risks COVID-19 present individuals and businesses is being updated constantly. Below are links to various websites that we understand present the most up-to-date information along with additional details on more specific situations. Employers should consider monitoring these websites as appropriate for their situation.

  1. CDC COVID-19 Website
  2. CDC’s Most Recent Guidelines for 15 Days to Slow the Spread (Issued March 16, 2020)
  3. CDC’s Frequently Asked Questions
  4. CDC’s Interim Guidance for Businesses and Employers
  5. CDC’s Environmental Cleaning and Disinfection Recommendations
  6. CDC’s Travel and Country Risk Assessments
  7. CDC’s Information for Healthcare Professionals
  8. CDC’s Information for Healthcare Facilities (including Long-Term Care Facilities)
  9. Occupational Safety and Health Administration Website on COVID-19
  10. OSHA’s Guidance on Preparing Workplaces for COVID-19
  11. Equal Employment Opportunity Commission Website on COVID-19 [Website updated with new information on March 18, 2020.]
  12. EEOC’s Guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act
  13. Department of Labor Website on COVID-19
  14. DOL’s Guidance on COVID-19 and the Fair Labor Standards Act
  15. DOL’s Guidance on COVID-19 and the Family and Medical Leave Act
  16. DOL’s Fact Sheet #17G: Salary Basis Requirement and Part 541 Exemptions Under the FLSA (Addressing circumstances in which an employer may make deductions from pay)
  17. Florida Department of Health General Website on COVID-19
  18. Florida Department of Health’s Interactive Website on COVID-19 Data and Surveillance
  19. Florida Department of Health’s Collection of Executive Orders addressing COVID-19
  20. Florida Department of Economic Opportunity Press Release on Emergency Bridge Loan Program for Small Businesses Impacted by COVID-19
  21. State of Florida Business Damage Assessment Website
  22. State of Florida Emergency Bridge Loan Program Website

Additionally, employers should carefully pay attention to any new legislation enacted by the federal, state, or local governments, which may affect employee’s rights in the face of COVID-19.

IMPORTANT LEGISLATION [NEW SECTION ON MARCH 19, 2020]
On March 18, 2020, Congress passed the President signed the Families First Coronavirus Response Act, or H.R. 6201. Our team is actively reviewing this new law and will offer guidance in a separate post.

CURRENTLY KNOWN INFORMATION ABOUT COVID-19

What symptoms does an individual with the COVID-19 coronavirus exhibit?

Generally, according to the Centers for Disease Control and Prevention, individuals with COVID-19 manifest symptoms as a mild to severe respiratory illness with fever, cough, and difficulty breathing, and these symptoms may appear in as few as two days or as long as 14 days after initial exposure.

SAFETY STEPS FOR EMPLOYERS

What’s the main workplace safety guidance employers should be following?

As noted above, OSHA recently published Guidance on Preparing Workplaces for COVID-19, which identifies various steps employers can take to help protect their workforce. OSHA divides workplaces and operations into four risk zones that determine the best work practices and precautions an employer should take:

  1. Very High Exposure Risk:
  • Healthcare employees performing aerosol-generating procedures on known or suspected pandemic patients
  • Healthcare or laboratory personnel collecting or handling specimens from known or suspected pandemic patients
  1. High Exposure Risk:
  • Medical transport of known or suspected pandemic patients in enclosed vehicles
  • Healthcare delivery and support staff exposed to known or suspected pandemic patients
  • Performing autopsies on known or suspected pandemic patients
  1. Medium Exposure Risk:
  • Employees with high-frequency contact with the general population (such as schools, high population density work environments, and some high-volume retail)
  1. Lower Exposure Risk (Caution):
  • Employees who have minimal occupational contact with the general public and other coworkers (such as office employees)

What steps can an employer take now to minimize risk of transmission?

Encourage employees to take the same steps they would be taking to avoid the common cold or seasonal flu: Avoid exposure. According to federal guidance, employers should tell employees:

  • Wash hands often with soap and water for at least 20 seconds, and if not available, use an alcohol-based hand sanitizer;
  • Avoid touching eyes, nose, and mouth with unwashed hands;
  • Avoid close contact with others, especially sick individuals;
  • Refrain from shaking hands;
  • Cover one’s mouth when coughing, preferably with one’s elbow;
  • Sneeze with a tissue, then throw the tissue in the trash;
  • Clean and disinfect frequently touched objects and surfaces—although it’s worth noting that some disinfectant wipes require that the wiped surfaces air dry before they are effectively disinfected; and,
  • Most importantly, stay home when sick.

Additionally, an employer should likely do the following:

  • Monitor local information about COVID-19 in the community;
  • Know the signs and symptoms of COVID-19 and what to do if staff become symptomatic at the worksite;
  • Review, update, or develop workplace plans to include liberal leave and telework policies;
  • Consider 7-day leave policies for people with COVID-19 symptoms;
  • Consider alternate team approaches for work schedules;
  • Encourage staff to telework (when feasible), particularly individuals at increased risk of severe disease;
  • Work with all local employers to ensure all workers have the financial support to stay home with any respiratory symptoms;
  • Encourage personal protective measures among staff (e.g., stay home when sick, handwashing, and respiratory etiquette as noted above);
  • Clean and disinfect frequently touched surfaces daily;
  • Ensure hand hygiene supplies are readily available in building, preferably at entrances to the workplace and work areas;
  • Limit large work-related gatherings (e.g., staff meetings, after-work functions);
  • Cancel non-essential work travel; and,
  • Cancel work-sponsored conferences, tradeshows, etc.

Please note that there is specific advice for healthcare settings and other groups. Such employers should review CDC guidance along with state and local public health officials’ guidance.

May an employer ask an employee to stay home or leave work if they exhibit COVID-19 symptoms? [Answer Updated on March 19, 2020]

Yes, according to the EEOC, employers are permitted to ask an employee to seek medical attention and get tested for COVID-19. Likewise, the EEOC confirms, based on the CDC and state and local public authorities’ declaration states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace.

Still, it pays to avoid panic, and supervisors should understand that they should not overreact when an employee appears for work with potential COVID-19 symptoms—they are simply enacting safety precautions.

More specifically, an employer should focus on the following symptoms:

  • Fever;
  • Chills;
  • Cough (especially a dry cough);
  • Shortness of breath; and/or
  • Sore throat.

Based on the available guidance, the most common COVID-19 symptoms are fever and a dry cough—albeit not all individual’s experiences with COVID-19 are uniform.

Beyond the symptoms, employers should also consider certain risk factors that the CDC has identified based on travel or contact with an individual suffering from COVID-19. The risk assessment is available at this link.

What should we do if an employee tests positive for COVID-19?

CDC guidance suggests that employees should send home all employees who worked closely with that employee for fourteen days to limit the spread of infection. Before the employee departs, ask them to identify all individuals who worked in close proximity (about six feet) with them in the previous two weeks to get a full list of those who likely should be sent home. When sending the employees home, an employer should not identify the infected employee. Identifying the employee potentially violates privacy and confidentiality laws.

Next, the employer also should inform their building management so they can take whatever precautions they deem necessary. The employer should ask their cleaning staff to provide a deep cleaning of the affected work areas.

Do employers have to document any confirmed COVID-19 cases?

According to recent OSHA guidance, a covered employer should record any COVID-19 related illness in its OSHA 300 log if the following criteria are met:

  • An employee has a confirmed case of COVID-19;
  • The employee’s confirmed case of COVID-19 is considered work-related per 29 CFR 1904.5 (i.e. if, outside certain exceptions, an exposure in the work environment caused or contributed to the resulting illness or aggravated a pre-existing injury or illness); and,
  • The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (such as death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness).

Should an employer take an employee’s temperature at work to determine whether he or she might be infected? [ANSWER UPDATED ON MARCH 19, 2020]

Yes, according to the EEOC, an employer may take an employee’s body temperature. The Americans with Disabilities Act restricts medical examinations that an employer can make. The EEOC considers taking an employee’s temperature to be a “medical examination.” But, according to new EEOC guidance, “because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.”

Please note that there remains separate guidance issued by the CDC for healthcare providers, healthcare facilities, and long-term care facilities, which can be found here and here, on how to handle body temperature checks.

Finally, it remains the case that an infected individual may not necessarily exhibit a fever. That may ultimately make temperature checks ineffective.

 

Can an employer force an employee to come to work even if they fear catching COVID-19?

Employees are only entitled to refuse to work if they believe they are in imminent danger, which means “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by [law.]”

Importantly, the threat must be immediate or imminent. An employee must believe that death or serious physical harm could occur within a short time. With COVID-19, requiring travel to China or Italy or to work with patients in a medical setting without personal protective equipment may meet this definition. Otherwise, most work conditions likely would not meet the elements required for an employee to refuse to work.

Still, this guidance is general. Employers must determine whether the circumstances have shifted such that a workplace places employees in imminent danger before determining whether they may lawfully require employees to come to work. It may still be best to allow flexibility to maintain employee morale. An employer may consider allowing employees to use any available leave or allow remote work. Further still, employers may wish to allow employees to go into the negative in their sick leave bank as a special allowance to address this situation. Of course, not all employers can make special allowances due to their financial condition, and they should handle it as best as they are able.

May an employer require medical certification before an employee returns to work? [ANSWER UPDATED ON MARCH 19, 2020]
According to the EEOC, employers may ask for a doctor’s note certifying an employee’s fitness for duty when an employee returns to work related to COVID-19. But, the EEOC notes that healthcare professionals will likely be overwhelmed, which will significantly delay such a discharge. The CDC has encouraged employers not to require “a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work.” Instead of a certification, the EEOC suggests that “new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.”

If an employer is hiring, may it screen applicants for symptoms of COVID-19? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
According to the EEOC, yes, an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer—as long as it does so for all entering employees in the same type of job.

May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
According to the EEOC, yes, any medical exams are permitted after an employer has made a conditional offer of employment. But, again, it is worth noting that there is some indication that not all infected individuals exhibit a fever.

May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
According to current CDC and EEOC guidance, yes, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
Noting current CDC guidance, the EEOC advises employers that this individual cannot safely enter the workplace. And as such, an employer may withdraw a job offer from such an individual.

Can an employer force an employee to cease discussing whether the worksite is unsafe because of potential COVID-19 exposure?

Likely no. The National Labor Relations Act protects non-supervisory employees—union and non-union alike—to engage in “protected concerted activity for mutual aid or protection.” Such activities include circumstances in which two or more employees act together about working conditions, participating together to refuse to work in unsafe conditions, and/or joining with co-workers to talk to the media about problems in the workplace. Employees are generally protected against discipline or discharge for engaging in protected activities.

EMPLOYEE TRAVEL

May an employer impose consequences, including unpaid leave, for an employee who engages in activities contrary to CDC recommendations such as going on a cruise or traveling outside of the US?

It depends. Employers in the healthcare or long-term care industries should consult the requirements specific to their industries.

All other employers may take action to protect their workplaces and customers from employees who engage in conduct that is determined to increase the risk of spreading COVID-19, and particularly if the conduct is contrary to CDC recommendations. If an employee has traveled to a Level 3 country, the employee can be required to remain at home. However, this is a fact-specific and quickly changing area. If the conduct does not involve a clear CDC recommendation, and the employer intends to prohibit the travel or suspend the employee without pay, the employer should consult counsel as to the specifics. The reasonableness of the employee’s activities and the employer’s response will depend on the level of risk or recommendation by the CDC at the time of travel and desired return to work and the nature of the work. Regardless, the employer should take caution to not regard such an employee as having a disability or illness because of the conduct, should protect the employee’s confidentiality of health information, and should ensure that the employer’s reaction is not and does not appear to be related to an employee’s protected characteristics, such as national origin, age, or pregnancy.

WAGE AND HOUR ISSUES

Are employers required to pay employees who are not working?

The Fair Labor Standards Act (FLSA) address minimum-wage and overtime. Generally, the FLSA does not require an employer pay employees who are not working. But, an employer may have a legal obligation to keep paying employees because of an employment agreement, a collective bargaining agreement, or some other state law.

Employers should consider salary issues with exempt employees. If an exempt employee performs at least some work during the workweek, the FLSA regulations will require that the employer pay the employee his or her entire salary for that workweek. There can be exceptions—for instance, according to DOL guidance, an employer does not have to pay an exempt employee who decides to stay home and performs no work even when the office is open.

Of course, employers may wish to consider the public relations aspect of not paying employees in this situation. Given adverse media related to COVID-19, an employer’s reputation could be damaged.

May an employer apply vacation or PTO leave to COVID-19-related absences?

Presuming no agreement or state law prevents it (which Florida law does not), yes, an employer may allow an employee to apply leave for COVID-19 related absences. Note, however, that the salary requirements for exempt employees may affect the use of leave under various circumstances.

When allowing remote work, what guidance should employers provide non-exempt employees?

In situations where remote work becomes required, employers should make sure they remind non-exempt employees about the following key points:

  • The non-exempt employee’s time records should accurately reflect all time actually worked.
  • Overtime is prohibited unless the employee’s supervisor approved the overtime beforehand.
  • Working unauthorized overtime constitutes misconduct and subjects the employee to discipline.
  • The option for remote work is temporary under the circumstances; the employer may end any remote work situation at any time and for any reason.

EMPLOYEE LEAVE AND ADA ISSUES

Does the Family and Medical Leave Act apply to COVID-19?

The FMLA may protect employees requesting leave if they are eligible. No law, however, prevents an employer from voluntarily extending an employee’s leave without any legal obligation to do so.

Still, employees are not entitled to FMLA leave to stay home to avoid catching COVID-19. We suggest that an employer may wish to consider leave requests depending on these circumstances. If there are questions, speak with legal counsel to try to avoid potential litigation.

Are there any ADA-compliant questions employers can ask their employees to determine their respective ability to work during a pandemic?

Yes, according to the EEOC, an employer can ask that employees complete the following survey to determine potential non-medical reasons for absences during a pandemic (e.g. curtailed public transportation or school or childcare closures):

EMPLOYEE SURVEY

Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

  • If schools or day-care centers were closed, you would need to care for a child;
  • If other services were unavailable, you would need to care for other dependents;
  • If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;
  • If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: YES______ , NO_______

There may, depending upon an employer’s situation, be additional ADA-compliant questions. Any other questions should be reviewed with counsel.

During a pandemic, may an ADA-covered employer ask employees who do not have symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to complications?

Generally, no. However, if the pandemic becomes severe or serious according to local, state, or federal health officials, ADA-covered employers may have sufficient objective information to reasonably conclude that employees will face a direct threat if they contract COVID-19. Only then may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to determine which employees are at a higher risk of complications.

HIPAA ISSUES

How does COVID-19 affect HIPAA privacy rules?

They are not affected. HIPAA rules remain in effect even with a pandemic.

How should employers treat medical information?

Generally, employers should treat all medical information as confidential and afford it the same protections as those granted by HIPAA in connection with their group health plan.

Yet, an employer may share the protected information with providers or government officials as necessary to locate, identify, or notify family members, guardians, or anyone else responsible for an individual’s care, of the individual’s location, general condition, or death. Before doing so, attempt to get the individual’s written or verbal permission to disclose this information. When unable to do so, the protected information can be shared if doing so would be in the individual’s best interests. In addition, an employer can disclose this protected information to authorized personnel without permission if disclosure is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public.

What obligations do employers have under the HIPAA privacy rules if contacted by health officials about one of our employees?

An employer should only disclose information to authorized personnel, and only after they have properly been identified.

WORKERS’ COMPENSATION ISSUES

If an employee contracts COVID-19 at the workplace, does the employee have a workers’ compensation claim?

It depends. When the employee is a healthcare worker or a first responder, then an employee who contracts COVID-19 likely has a workers’ compensation claim—albeit subject to specific state law on the subject.

For other types of employees, the answer is not clear-cut and depends on the situation. Generally, an employee must show they suffered a work-related injury or “occupational disease,” and that the injury or disease was proximately caused by their employment to establish a workers’ compensation claim.

In this instance (again subject to state law), COVID-19 likely will not be considered an injury. Rather, it likely will be analyzed under the “occupational disease” framework. Under that framework, an employee usually has to show that (1) the disease arose out of and was in the course of employment; and (2) the disease arose out of or was caused by conditions peculiar to the work, creating a greater degree of risk for contracting the disease compared to the general public. This determination will likely be made on a case-by-case basis, and it is difficult to tell in advance whether non-healthcare workers or first responder employees will be able to establish such an “occupational disease.”

DISCRIMINATION OR HARASSMENT ISSUES

Does an employer have any discrimination or harassment issues related to COVID-19?

As in any other situation, an employer cannot apply disparate treatment to employees based on their nation of origin. Employers should watch to make sure no employees are being subjected to disparate treatment or harassed in the workplace because of their national origin. However, note that if an employee, regardless of their race or national origin, was recently in China, Iran, or Italy and shows COVID-19 symptoms, employers may have a legitimate reason to bar that employee from the workplace.

SUSPENSION OF OPERATIONS AND LAYOFF ISSUES

If an employer is forced to suspend operations because of COVID-19 and the aftermath, does the employer have any legal obligations due to the suspension?

Potentially, yes. If an employer is covered by the Worker Adjustment and Retraining Notification (WARN) Act, which applies to employers with 100 or more full-time employees, they may have to provide certain notices to affect employees if there has been a “plant closing” or “mass layoff,” regardless of reason. Please note that these quoted terms are special, nuanced words with specific meanings defined by federal regulations. They do not cover every single layoff or plant closure.

What are a “plant closing” and a “mass layoff”?

A “plant closing” is defined as the permanent or temporary shutdown of a site that results in an employment loss for 50 or more employees during any 30-day period. A site can include one or more facilities or operating units at single location. On the other hand, a “mass layoff” is a reduction-in-force other than a plant closing that results in an employment loss at a single site for 500 or more employees, or at least 50 or more employees and at least 33% of the employer’s active workforce.

Also, for purposes of WARN, a layoff must last at least six months. Of course, in situations like this, it is hard to know how long a layoff may occur.

What type of notice must employers provide under WARN?

Under WARN, employers must provide at least 60 calendar days of notice before a covered plant closure or mass layoff. Also, under WARN, employers must provide notice to unions and certain local government entities along with certain specified information.

Still, WARN has a specific exception when layoffs occur due to unforeseeable business circumstances. It is possible this provision could apply to COVID-19—albeit there is no certainty and this exception is repeatedly litigated.

Even then, an employer still must provide “as much notice as is practicable, and at that time shall give a brief statement of the basis for reducing the notification period.” Stated differently, after an employer evaluates the immediate impact of COVID-19 upon its business and workforce, it likely must then provide specific notice to affected employees. The notice must explain why the employer could not provide notice for the statutorily-required period. In this instance, the explanation would be because of how COVID-19 was not foreseeable.

Keep in mind that some states have “mini-WARN” laws that may apply, but Florida is not one of them.

Will the DOL enforce WARN given the seemingly-unprecedented outbreak?

Unknown at this time. But employees and lawyers representing them may still bring a suit even if the DOL does not.

Consequently, it is recommended that employers carefully evaluate their current situations to determine if there has been or will be a triggering event under WARN. If so, employers should consider providing as much notice to affected employees as possible given the circumstances.

We will continue to provide additional updates as new information becomes available.

John C. Getty
jgetty@williamsparker.com
(941) 329-6622

Coronavirus and the Workplace

wash hands

With fears of COVID-19 or Coronavirus Disease mounting, businesses and employers should not only understand how the disease could affect their workplaces, but also take steps to minimize any possible impact.  To assist with this objective, the United States Centers for Disease Control and Prevention (CDC) issued an Interim Guidance for businesses and employers in non-healthcare settings. Other guidance directed at specific industries, such as healthcare, airlines, and ship industry have also been issued.

Below are several strategies that employers can implement now:

  • Actively encourage sick employees to stay home, especially those with symptoms of acute respiratory illness, until free of fever (100.4˚F or greater) and any other symptoms for at least 24 hours without using fever-reducing or other symptom-altering medicines.
  • Do not require a healthcare provider’s note to validate the illness as medical facilities may be extremely busy and unable to provide documentation timely.
  • Anticipate employees may need to stay home to care for sick family members.
  • Send home sick employees upon arrival or when symptoms appear.
  • Emphasize staying home when sick, respiratory etiquette, and hand hygiene by all employees.
  • Provide tissues, alcohol-based hand sanitizer, and soap and water.
  • Perform routine environmental cleaning, including frequently touched surfaces, like workstations, desks, countertops, doorknobs, keyboards, remote controls, and telephones.
  • Advise employees before traveling to check CDC’s Traveler’s Health Notices.
  • Adopt additional measures to respond to employees or their family members who have COVID-19:
    • Notify employee’s supervisor.
    • Inform fellow employees of their possible exposure.
    • Refer ill and exposed employees to a CDC guidance for how to conduct a risk assessment.
    • Maintain sick employees’ confidentiality as required by Americans with Disabilities Act.
  • Design infectious disease outbreak response plan.
  • Prevent discrimination in the workplace—do not make determinations of risk based on race or national origin.

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557

A Reminder on How to Avoid the Naughty List When it Comes to Office Holiday Parties

Although the Mad Men days of the sexy secretary sitting on Santa’s lap (the boss’s lap) with his arms wrapped around her while both are drinking a dry martini SHOULD be a vestige of the past, there are those that believe that “keep your hands to yourself” does not apply to them.  And, there are those that understand the “hands-off” rule, yet when under the influence of alcohol, find their inhibitions on the copy room floor.

This year, with stories of sexual harassment and abuse continuing to make headlines (think Tony Robbins, Bryan Singer, and Les Moonves), it is more important than ever for employers to consider the potential risks associated with any planned celebration. Employers should keep in mind that office policies that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior, from simple innuendos to unwelcome touching that could lead to claims of sexual harassment. The office holiday party can be a quagmire of potential employment issues, even beyond sexual harassment. These issues can include claims due to on-the-job injuries (workers compensation), unpaid wages for attending the party (the Fair Labor Standards Act), or other types of workplace harassment or discrimination (e.g. religion).

As you prepare for your office party, consider whether alcohol should be available, as most issues arise due to someone bending the elbow a bit too much. If you do decide to provide spirits make sure you have someone (a designated responsible adult) that is watching to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If its voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class.  Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule. You do not want your CEO or VP added to the naughty list.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

BREAKING NEWS: Final Overtime Rule Released

Employers, the long wait is over. You finally have an answer regarding whether the federal overtime regulations are going to be changed. As discussed in our earlier blog posts Let’s Try this Again: Department of Labor Proposes Salary Increases for White-Collar Exemptions and Once More, With Feeling: Proposed Increase to Minimum Salary for Highly Compensated Employees, in March 2019, the U.S. Department of Labor abandoned its 2016 attempt to increase the salary threshold for exempt employees when it issued a much-anticipated proposed rule. On September 24, 2019, the DOL formally rescinded the 2016 rule and issued its new final overtime rule.

The new rule, taking effect on January 1, 2020, increases the earnings thresholds necessary to exempt executive, administrative, professional, and highly compensated employees from the Fair Labor Standard Act’s overtime pay requirements from the levels that had been set in 2004.  Specifically, the new final rule:

  • Increases the “standard salary level” from $455 to $684 per week (equivalent to $35,568 per year for a full-year worker);
  • Raises the total annual compensation level for “highly compensated employees” from $100,000 to $107,432 per year; and
  • Revises the special salary levels for workers in U.S. territories and in the motion picture industry.

And, for the first time, the final rule allows employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level for executive, administrative, and professional employees (not highly compensated employees).

Employers take note, however, that the new final rule does not change the duties portions of the otherwise affected exemptions. For more information about the new final rule, you can go to the Department of Labor website.

As New Year’s Day will be here before we know it, this is a good time for employers to audit their pay practices to make sure that employees are properly classified, update timekeeping and payroll systems, and train reclassified employees on new processes before the new rule takes effect.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557