Coronavirus (COVID-19)

TPC is your partner in employee management, from attracting top talent to creating a work environment where they will thrive. As your partner, we are here to explain the emergency legislation, Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Relief, and Economic Security Act (CARES Act), that Congress has passed in response to the COVID-19 crisis to help you understand how this legislation may apply to or impact your business.

We are all in this together— let us be there for you.

Resources

Loading

Emergency Leaves Under The Families First Coronavirus Response Act

Open the PDFs below for flow charts that help you determine how your business may be impacted by FFCRA.

NEW COVID-19 UPDATES

New Guidance
DOL Guidance
FFCRA Documentation
DOL Interperation Update
CARES Act
FFCRA FAQs
FFCRA Update
FFCRA
DOL Statement

New Guidance

FRIDAY, APRIL 3

Documentation: Employers may not require more documentation from employees than is described below. For instance, employers may not request a doctor’s note or an official notice from a closed school or daycare.
EPSL due to Stay-at-Home Orders: In some narrow circumstances, an employee who is subject to a stay-at-home order may be able to receive EPSL. They will only be eligible if the business is open and has work for them to do, but a stay-at-home order that applies specifically to them as an individual prevents them from working. For instance, if the retail store where an employee works as a cashier is still open, but the employee is over 65 and subject to an executive order from their governor that all people over 65 should stay home, they would be eligible for EPSL.

DOL Guidance

WEDNESDAY, APRIL 1

An individual generally is entitled to FFCRA’s paid sick leave regardless of how much leave has been taken under the FMLA, the DOL said in recent guidance, but if someone takes paid sick leave concurrently with the first two weeks of Emergency Family and Medical Leave, which otherwise would be unpaid, those two weeks do count toward the 12 workweeks in the 12-month period.

Additionally, to resolve inconsistencies between the FFCRA’s paid sick time and expanded Family and Medical Leave Act (FMLA) provisions, DOL said it would set the unpaid period for emergency FMLA leave at two weeks, rather than 10 days. “As a practical matter, the unpaid period for employees who work regular Monday-through-Friday schedules would still be ten days because that is the number of days they would work in two weeks,” DOL said.

Among other things, the regulations make clear that an employee may elect to use — or an employer may require that an employee use — paid time off such as vacation or personal time concurrently with expanded family and medical leave.

FFCRA Documentation

WEDNESDAY, APRIL 1

The DOL/IRS said that the employee must provide a signed statement containing:

  • The employee’s name.
  • The date(s) for which leave is requested.
  • The coronavirus-qualifying reason for leave.
  • A statement that the employee can’t work or telework because of this reason.

The DOL/IRS said that an individual requesting under the emergency paid sick leave and emergency family and medical expansion leave must provide:

  • The name and age of the child being cared for.
  • The name of the school, place of care or childcare provider that closed or became unavailable due to coronavirus reasons.
  • A statement representing that no other suitable person is available to care for the child during the period of the requested leave.
  • A statement with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen years of age during daylight hours and a statement regarding the special circumstances.

DOL Interperation Update

WEDNESDAY, APRIL 1

The DOL also released further interpretation stating that “quarantine or isolation order” does include a shelter-in-place or stay-at-home order issued by the government. Several U.S. states, municipalities, and counties are currently under these orders; this means any employee working for a covered employer in these covered areas will be entitled to Emergency Paid Sick Leave under reason number 1 if they cannot perform the job remotely.  The only individuals excluded from this provision are health care providers and emergency responders or companies who have received an exemption from the Secretary of Labor.

CARES Act

Friday, March 27

The President signed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The new law is a $2 trillion economic stimulus package designed to repair the economic damage caused by COVID-19 and provide additional protection to individuals and businesses who may lose income due to the pandemic.

FFCRA FAQs

Friday, March 27

The DOL release their interpretation FAQs on their Families First Coronavirus Response Act: Questions and Answers webpage. The major highlights include; these leaves are not available to employees with reduced hours, furloughed employees, or employees whose workplaces are closed; these leaves are not available to employees whose workplaces are closed due to a federal, state, or local shelter-in-place or stay-at-home orders, or due to business slowdowns; both emergency paid sick leave (EPSL) and emergency Family and Medical Leave (EFMLA) can be taken on an intermittent basis in certain situations.

FFCRA Update

Wednesday, March 25

The wage and hour bulletin released a statement saying “That the non-enforcement period runs from the date of enactment of the FFCRA (March 18), not the effective date of the FMLA expansion and paid sick leave provisions (April 1).”

FFCRA

Tuesday,  March 24

The Department of Labor (DOL) announced that the effective date of the leaves available through the Families First Coronavirus Response Act (FFCRA) will be April 1, 2020.

DOL Statement

Tuesday, March 24

The DOL announced, “You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States.”

FEDERAL AND STATE RESOURCES

FREQUENTLY ASKED QUESTIONS

• Division A—Second Coronavirus Preparedness And Response Supplemental Appropriations Act, 2020
• Division B—Nutrition Waivers
• Division C—Emergency Family And Medical Leave Expansion Act
• Division D—Emergency Unemployment Insurance Stabilization And Access Act Of 2020
• Division E—Emergency Paid Sick Leave Act
• Division F—Health Provisions
• Division G—Tax Credits For Paid Sick And Paid Family And Medical Leave
• Division H—Budgetary Effects

Employees working a regular schedule:
• Number of hours an employee would otherwise be normally scheduled to work.
For employees working a variable schedule:
• Employed 6 months or more - average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type.
• Employed less than 6 months - average number of hours per day that the employee would normally be scheduled to work.

Full-Time Employees:

• 80 hours

Part-Time Employees:

• Average number of hours an employee works over a two-week period.

For part-time employees working a variable schedule:

• Employed 6 months or more - average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type.

• Employed less than 6 months - average number of hours per day that the employee would normally be scheduled to work.

Yes. The bill is very clear that these provisions are in addition to any existing benefits received through the employer’s existing paid time off benefits.

No. The EPSLA provisions state that “An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time.”

No, you cannot take away paid time off benefits from employees that utilize the emergency leaves under the FFCRA. If you plan to redo your company’s paid time off policies, you must be consistent in implementing the new policy to all employees (regardless of if they took the emergency leaves or not). You will want to ensure that you evaluate the balances and parameters of your paid time off benefits before making changes during this time of uncertainty.

Yes. In response to the current COVID-19 outbreak, the Equal Employment Opportunity Commission states that advising workers with symptoms to go home is not a disability-related action if the illness is akin to seasonal influenza and is permitted under the Americans with Disabilities Act (ADA) if the illness is serious enough to pose a direct threat to the employee or coworkers. Further, the Centers for Disease Control (CDC) advises that employees with symptoms of acute respiratory illness and a fever (greater than 100.4 degrees Fahrenheit or 37.8 degrees Celsius, using an oral thermometer) should stay home. Of course, employers should apply this type of policy uniformly and in a manner that does not discriminate based on any protected characteristic (e.g., national origin, gender, race, etc.).

1) Employee has a confirmed positive test for COVID-19.

2) Employee is presumptive/suspected positive for COVID-19.

3) Employee is symptomatic of COVID-19 but not yet tested.

4) Employee is asymptomatic but has been in close contact with someone who has tested positive for COVID-19.

5) Employee is asymptomatic but has been in close contact with someone who is symptomatic or presumptive/suspected positive for COVID-19.

6) Employee is asymptomatic but recently traveled to a “High-Risk” area.

7) Employee is asymptomatic of COVID-19 but has flu-like symptoms.

While you may request it, according to CDC guidelines, employees do not need to provide a healthcare provider’s note if they are sick with acute respiratory illness to validate their illness, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.

Yes, you can require a Return to Work release. The employee should be fully symptom free for a period recommended by a medical provider.

As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, 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 is fully symptom free for the doctor recommended period.

You can require that they be off work for a period of up to 14 days to
await test results. If they test positive, you can require a Return to Work
release. If they test negative, you can allow them to return to work, but
you may want to require a Return to Work release to ensure they are not
contagious per any other viruses. If they are unable to get tested, you can
require them to be off work for 14 days.

As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, 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 is fully symptom free for the doctor recommended period.

It is not advised to implement a personal travel ban to employees, but you can prevent employees from returning to work for 14 days if they have traveled to a “High Risk” area.

You can require them to work as long as there is no legitimate threat and they do not require an accommodation.

Under OSHA guidelines, employees are protected from retaliation in certain circumstances when they refuse to perform work as directed. Specifically, an employee may refuse an assignment that involves “a risk of death or serious physical harm” if certain conditions apply. While each situation is different, and a generalized fear of contracting COVID-19 is not likely to justify a work refusal in most cases, employers may want to conduct a thorough review of the facts before any disciplinary action is taken against an employee who refuses to perform his or her job for fear of exposure to COVID-19.

Even if the employee’s refusal is deemed justified, the OSH Act does not require that the employee be paid for any time he or she is not at work due to his or her refusal.

This is generally considered a medical test and is prohibited. However, if COVID-19 becomes widespread in the community, as determined by state or local health authorities or the CDC, then the EEOC does allow employers to take the temperature of employees as long as it is done in a uniform manner and does not violate union contracts, HIPAA rules, etc. COVID-19 is now officially a “direct threat” and employers may take the temperatures of its employees as it relates to determining if an employee may have symptoms of COVID-19.

Keep in mind that employees may be infected with COVID-19 without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.

We encourage you to have employees work from home when possible and for those employees who cannot work from home, encourage them to self-report symptoms.

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. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.

Occupational Safety and Health Act (OSHA)

• No specific safety standard or regulations for contagious illnesses/diseases.

• General Duty Clause states that workplace should be “…free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

• Recommends following federal, state and local health authorities.

• Follow OSHA’s recommendations based on worker risk of occupational exposure (exposure risk level for position: very high, high, medium, and lower exposure).

• You must record instances of workers contracting COVID-19 if the worker contracts the virus while on the job. The illness is not recordable if a worker was exposed to the virus while off the clock.

• For employees working from home, ensure that the workspace is safe and free of recognized hazards.

Workers’ Compensation

• State specific guidelines.

• Must be “occupational illness/disease” and normally “arise out of and in the course and scope of employment” to be compensable. This means that the employee must contract it as a result of performing their job duties and wouldn’t normally contract it outside of work.

• Contagious or communicable disease which employee contracts or to which exposed at work is not typically compensable; however, if it is contracted as a result of performing necessary part of job duties (e.g. health care worker caring for a patient who has tested positive), it may be compensable.

Americans With Disabilities Act (ADA)

• Must be “job related and consistent with business necessity.”

• May be met if an employee poses a “direct threat” (significant risk of substantial harm to self or others while working).

• When communicating with employees, ensure that your inquiries are directly related to COVID-19 such as:

-- Traveling to a “High Risk” area.

-- Symptoms of COVID-19 or other illnesses with similar symptoms such as the flu.

-- Potential exposure to COVID-19 and related tests/results.

• Be careful not to make inquiries that would elicit information about current medical conditions.

Family Medical Leave Act (FMLA)

• Pandemic flu likely constitutes a serious health condition if it meets the regular criteria for a serious health condition (e.g. overnight stay in a hospital, etc.).

• Medical Certifications and Return to Work releases may be difficult to obtain if health care workers are overwhelmed.

Age Discrimination in Employment Act (ADEA)

• Do not make inquiries about symptoms in a discriminatory manner. For instance, don’t ask questions to older workers, but not ask the same questions to younger workers.

• Do not isolate older workers but not younger ones to force social distancing.

Fair Labor Standards Act (FLSA)

• Exempt Employees

-- Must pay for full day if the employee works any part of that day.

-- Must pay for full workweek if the employees works any part of the week (with limited exceptions such as full day deductions for FMLA leaves of absence, personal reasons, etc.)

• Non-Exempt Employees

-- Not required to pay for any time not worked but may owe reporting time pay if applicable.

• Can require use of PTO, vacation and sick days until exhausted as coordinated with the emergency leave requirements per the Families First Coronavirus Response Act.

National Labor Relations Act (NLRA)

• Union contracts

• Concerted Activity

• Lockout/Shutdown by Employer

Worker Adjustment and Retraining Notification Act (WARN)

• For employers with 100+ employees when a layoff exceeds 6 months.

• Requires 60 days advance notice of shutdowns, mass layoffs (33% of workforce); however, there may be exceptions to notice requirements due to unforeseeable business circumstances or natural disasters.

Short-Term Disability - Yes, if applicable, employees may be eligible for STD.

State Laws and State Temporary Emergency Laws

Not usually, unless the employer acquired the information in its role as the administrator of the health insurance plan. Because most employers will learn of a COVID-19 diagnosis from the employee or his or her family, the Health Insurance Portability and Accountability Act (HIPAA) usually will not be implicated.

However, we do recommend that you keep it confidential. Let employees know that there has been an exposure and notify affected employees to get tested but don’t mention who has it.

• Work from home (telework)/may also be a reasonable accommodation

• Changing hours of operation

• Salary/wage reductions (may require an advance notice per state law, must retain exempt employee salaries above salary threshold, if applicable). Must not take an employee below applicable minimum wage.

• Furloughs

• Layoffs (temporary or permanent)

• Reduction of workforce

• Cease operations/permanently close business

• Health Insurance Coverage/COBRA

• PTO/Vacation/Sick/Personal Time Off Policies

-- May consider adjusting policies to provide additional time off, allowing employees to borrow against future accruals, allowing employees to borrow against future plan years, etc.

• Unemployment Benefits

The Small Business Administration (SBA) will work directly with state Governors to provide targeted, low-interest loans to small businesses and non-profits that have been severely impacted by the Coronavirus.

The SBA’s Economic Injury Disaster Loan program provides small businesses with working capital loans of up to $2 million that can provide vital economic support to small businesses to help overcome the temporary loss of revenue they are experiencing.

Find more information on the SBA’s Economic Injury Disaster Loans at: SBA.gov/Disaster.

Need more answers? Submit your questions below.

Helpful Sources

We’ve collected credible sources to keep you informed with accurate information and to provide tips on how to prevent the spread of coronavirus among your employees.

Information

Prevention

Preparation

Need assistance in managing your HR function?

TPC Vision offers a full-service platform designed around facilitating, streamlining, and enhancing a company’s payroll, human resources, and employee benefits functions. Let us assist with your HR compliance, employee handbook, recruiting, onboarding/ offboarding, performance management, training, and employee relations through a comprehensive and cost-effective solution to human capital management.

Click here to get more information!