The Department of Labor has been hard at work issuing FAQs to try to explain the provisions of the Families First Coronavirus Response Act before it goes into effect on April 1, 2020.  To see earlier reports on these FAQs, see our blog posts on March 24th, March 27th and March 28th.

The latest FAQs (we are now up to 59 FAQs from the DOL on this subject), include further details about the planned exception for certain small employers.

Employers should keep in mind that FAQs may be considered by courts as informal guidance but do not have the force of law (or even of regulations, which have not yet been issued by the DOL).  As is evident by the manner in which the DOL is currently publishing these, they can also be changed by the DOL without notice.  Therefore, to the extent employers rely upon these, before the DOL issues official regulations, they should check to make sure they are reviewing the current version and print a copy of the DOL’s website page containing these FAQs at that time, which may be necessary to establish good faith, if the information later changes.

The FFCRA provides that the DOL can issue regulations exempting small businesses with fewer than 50 employees from certain  provisions of the Emergency Paid Sick Leave and Emergency Family and Medical Leave Expansion Act, when the imposition of such requirements would jeopardize the viability of the business as a going concern.  Based on the law and the FAQs, it appears this exception will only exempt certain small employers from the paid sick leave and expanded FMLA when the reason it is needed is due to a school or child care closure.  Even if an employer qualifies for this exception, they still must provide up to 80 hours of paid sick leave for employees to use for the other reasons under the new Emergency Paid Sick Leave Act, including when an employee is unable to work or telework due to a need for leave because:  (1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (5) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

The DOL’s recent FAQs provide some guidance as to what criteria a small employer must meet in order to qualify for the exemption.  In particular, in order to qualify, the business must be less than 50 employees, the leave needed must be due to a school or child care closure or the unavailability of a child care provider due to COVID19, and an authorized officer of the business must determine that one of the following apply:

  1. The provision of paid sick leave or expanded family and medical leave 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;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not 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 paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Below are the specific FAQs from the DOL addressing these issues:

58. When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing paid sick leave and expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

    • The provision of paid sick leave or expanded family and medical leave 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 or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
    • There are not 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 paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

59. If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

    • employer employs fewer than 50 employees;
    • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
    • an authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.

The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.

Please visit our COVID-19 resource webpage often to stay abreast of the developments or contact your JL attorney directly with any questions

The Department of Labor has been hard at work issuing FAQs to try to explain the provisions of the Families First Coronavirus Response Act before it goes into effect on April 1, 2020.  To see earlier reports on these FAQs, see our blog posts on March 24th and March 27th. The latest FAQs (we are now up to 59 FAQs from the DOL on this subject), include a number of helpful provisions for employers, in particular health care employers, some of which are different than what had previously been reported.

Employers should keep in mind that FAQs may be considered by courts as informal guidance but do not have the force of law (or even of regulations, which have not yet been issued by the DOL).  As is evident by the manner in which the DOL is currently publishing these, they can also be changed by the DOL without notice.  Therefore, to the extent employers rely upon these, before official regulations are issued by the DOL, they should check to make sure they are reviewing the current version and print a copy of the DOL’s website page containing these FAQs at that time, which may be necessary to establish good faith, if the information later changes.

The FFCRA allows employers of health care providers and emergency responders to exclude these employees from the leave provisions under both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.  In its definitions, the FFCRA defined “health care provider” to have the same meaning as under the FMLA (which is limited primarily to doctors and other providers).  The DOL has clarified in its FAQs that the term “health care provider” actually has two different meanings in the act.  According to the DOL, the definition section which limits health care providers to doctors and specific individuals, only applies to define the individual who advises an employee to self-quarantine under the second basis for paid sick leave.  The DOL now provides a new, second definition of health care provider for the purpose of determining who can be excluded under the health care employee exception.  Below are the relevant FAQs from the DOL on the definition of health care provider and emergency responders.  You should consult with counsel about how these FAQs and the FFCRA apply to your company’s own circumstances:

55. Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?

The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

56. Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

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.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.

57. Who is an emergency responder?

For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an 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.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

Please visit our COVID-19 resource webpage often to stay abreast of the developments or contact your JL attorney directly with any questions.

The EEOC published a recorded webinar on March 27.  The EEOC uses a Q and A format to address 22 common questions from employers covering a broad range of topics including among other things, taking employees temperatures, appropriate and inappropriate disclosure of information related to an employee’s COVID-19 diagnosis, and managing employee accommodation requests including requests from employees in the high risk categories identified by the CDC.  The EEOC emphasized that none of the laws the EEOC enforces, including the ADA, interferes with or prevents employers from following the guidance of the CDC or other public health authorities.

As the employer community attempts to navigate the current pandemic crisis and EEO law, one of the most common questions from employers is whether the ADA permits employers to notify public health authorities if they learn an employee has COVID-19.  The EEOC explained yes, the ADA permits employers to notify public health authorities because COVID-19 poses a direct threat to both those with the disease and those with whom they come into contact. The EEOC, however, did not clarify whether an employer is permitted to identify the individual by name.   The EEOC also addressed the information that can be shared with the workforce under these circumstances:

  1. Employers may be concerned that telling employees that “someone at this location” or “someone on the 4th Floor” has COVID-19 may not provide sufficient information to allow people to know if they should take further steps to protect themselves or others.  Therefore, can employers tell the workforce the name of the employee with COVID-19?   

 No.  The ADA does not permit such a broad disclosure of the medical condition of a specific employee.  More importantly, this broad disclosure is not recommended by the CDC.  The CDC advises employers to maintain confidentiality of people with COVID-19.

The EEOC’s webinar supplements the EEOC’s existing publications: “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” and “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act“.

Please visit our COVID-19 resource webpage often to stay abreast of developments or contact your JL attorney directly with any questions. For more information regarding COVID-19 issues employers face, tune in to our Daily Briefing webinars using this link to register.

The Department of Labor issued additional FAQs on Thursday March 26. They now offer 37 FAQs on how the paid sick leave and expanded FMLA leave under the Families First Coronavirus Response Act will apply. The leave obligations begin April 1, 2020.

As more and more employers are required to shutdown due to state orders or layoff employees due to business concerns, a frequently asked question is whether the employees impacted by these closures and layoffs will still be eligible for paid sick leave and paid FMLA leave under the FFCRA. According to the FAQs issued by the DOL, they will not:

24. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility.
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26. If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?

No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

In addition to several FAQs on the impact of layoffs and furloughs, the FAQs also address what documentation employers should request, whether the paid sick leave and paid FMLA can be used intermittently and whether other employer-offered paid leave can be used concurrently with that required by FFCRA.

Please visit our COVID-19 resource webpage often to stay abreast of the developments or contact your JL attorney directly with any questions. For more information regarding COVID-19 issues employers face and about the Families First Coronavirus Response Act (March 26), tune in to our Daily Briefing webinars using this link to register.

The Department of Labor published today the required poster for employers under the Families First Coronavirus Response Act.  We, like many of you, noticed that the DOL’s poster appears to have an error in it as it leaves off the pay requirement with respect to paid sick leave for reason 5 (school closings) and then claims the additional 10 weeks of pay under the expanded FMLA is capped at $12,000 instead of $10,000.*  We believe this is just an oversight and likely will be fixed.  In the meantime, the poster can be found here.

In addition, the DOL issued FAQs concerning the poster, which can be found here.

As referenced in our post yesterday the Families First Coronavirus Response Act  will begin to apply to leaves on April 1, 2020.  We are sure there is more to come, as regulations are still expected and Congress continues to debate whether other changes will be forthcoming.  Stay tuned…

For more information regarding COVID-19 issues employers face and about the Families First Coronavirus Response Act (March 26), tune in to our Daily Briefing webinars using this link to register.

*After this article was published, the DOL revised the poster correcting the error and clarifying that an employee can take “Up to 12 weeks of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason #5… for up to $200 daily and $12,000 total.”

The Department of Labor has published FAQs on the application of the Families First Coronavirus Response Act.  According to the DOL, the Act will apply to  leave taken between April 1, 2020 and December 31, 2020.  In addition to providing the effective date, the FAQs answer questions about how an employer knows if it is under the 500 -employee threshold and, therefore, subject to the Act and how to calculate hours for part-time employees. The DOL tells small employers who wish to fall under the small business exemption that they will need to document why their business meets the criteria that will be set forth by the Department in forthcoming regulations.  The law in this arena is changing almost as quickly as the infection spreads – stay tuned.  We are expecting the required notice to be published by the Department this week, and it has promised future regulations as early as next week.  Meanwhile, Congress continues to debate additional changes.  Please visit our COVID-19 resource webpage often to stay abreast of the developments or contact your JL attorney directly with any questions.

 

Effective March 18, 2020, the Seattle Paid Sick and Safe Time (PSST) Ordinance allows eligible employees working in Seattle to use PSST when their family member’s school or place of care is closed, regardless of whether such closure is made by a public official. In addition, when “Tier 3” employers (with 250 or more full time equivalent employees worldwide) reduce operations or close a Seattle worksite for any health or safety reason, those employees are now able to use PSST for that reason. Thus far, neither the City Council nor the Office of Labor Standards has provided guidance on what exactly is meant by a reduction in operations.

Previously, PSST was not guaranteed to employees whose child’s school closed for health reasons (but not by a public official), or whose other family member’s place of care was closed for health reasons. Nor was PSST guaranteed to employees of a “Tier 3” employer that simply reduced its Seattle operations or closed its Seattle worksite for health or safety reasons.

Employers should also consider the dramatic impact of the brand-new federal Families First Coronavirus Response Act (H.R. 6201), which provides paid family and medical leave and paid sick leave at the federal level. Those paid leave entitlements are separate and apart from the existing Washington Paid Family and Medical Leave Program and the PSST already available to workers in Seattle and throughout the state. Please contact Jackson Lewis attorneys for additional information on this and other workplace issues.

©2020 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Focused on labor and employment law since 1958, Jackson Lewis P.C.’s 950+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. We help employers develop proactive strategies, strong policies and business-oriented solutions to cultivate high-functioning workforces that are engaged, stable and diverse, and share our clients’ goals to emphasize inclusivity and respect for the contribution of every employee. For more information, visit https://www.jacksonlewis.com.

On March 19, 2020, the Equal Employment Opportunity Commission updated its 2009 pandemic preparedness guidance: Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Our colleague in the Privacy, Data and Cybersecurity practice group published an alert discussing the updates. Read more.

As reported over the weekend, the House of Representatives passed H.R. 6201, also known as the Families First Coronavirus Response Act, early Saturday morning. Yesterday, the House began making changes and we understand the Senate is currently considering its own changes. We will provide updates on significant changes to this bill once more information is learned. We know there was discussion about changing the reasons for use of the proposed expanded FMLA and paid sick leave, and discussion about capping the dollar amount of both. Stay tuned. As with everything related to COVID-19, things are changing daily and sometimes by the hour. If you need assistance with these or other issues related to COVID-19, you can contact the Jackson Lewis attorney with whom your normally work or the firm’s Coronavirus/COVID-19 Task Force.

With 53 presumptive-positive cases of the novel coronavirus (COVID-19) in Michigan as of March 15, Michigan is taking proactive steps to reduce transmission of the virus. Below is a brief synopsis of what employers need to know.

On March 10, 2020, Michigan’s Governor Gretchen Whitmer declared a state of emergency in Executive Order 2020-4. Two later, on March 13, 2020, Governor Whitmer issued Michigan Executive Order 2020-5, which prohibits all events and “single shared space” assemblies of more than 250 people. There are 3 exceptions to this: (1) industrial or manufacturing work, (2) mass transit, and (3) assembly for the purchase of groceries or consumer goods. A “single shared space” includes but is not limited to a “room, hall, cafeteria, auditorium, theater, or gallery,” and there is no express exception for private employers. We have contacted the governor’s office to confirm whether “single shared space” would include open-concept workspaces because it appears to. We will update this blog post on receipt of that additional information.

The order also closes all K-12 buildings, though residential and child care facilities at schools can remain open. This order is in effect until April 5, 2020, at 5 p.m. A willful violation of the order constitutes a misdemeanor. According to Michigan’s Attorney General, violations could lead to penalties, such as the loss of a business liquor license.

In light of Michigan’s approach to this ever-evolving issue:

  • Periodically check the State of Michigan’s Coronavirus website here. For example, the governor has indicated that she may close all restaurants and bars beginning on March 16 at 3 p.m., with the exception of carry-out. An executive order related to this would likely be posted to this website.
  • Remember that Michigan’s Paid Medical Leave Act allows employees to take paid medical leave related to the closure of the workplace by order of a public official due to a public health emergency, to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency, or if it has been determined by health authorities that the employee or the employee’s family member’s presence in the community would jeopardize the health of others (i.e., the current situation).
  • Check the public health department websites for counties in which you have employees or facilities for local restrictions. For example, on March 16, Oakland County began requiring all bars, restaurants, entertainment facilities and physical fitness facilities to reduce capacity to 50%.
  • Employers subject to EO 2020-5 should eliminate assemblages of at least 250 persons. Consider limiting travel to educational conferences, having some employees work from home (if they are not already), creating a more frequent shift rotation, or separating employees across several shared spaces/facilities to reduce the number of employees in one space.
  • Employers must still maintain hours worked records for non-exempt employees, even if they are working from home. If you do not currently have a system for having hourly employees report their hours worked, create one, even if it is just in the form of a spreadsheet or emails from the employees reporting their hours worked.
  • If your employees will be working from home for an extended time, consider updating telecommuting policies to make clear that employees are expected to maintain the safe conditions and confidentiality practices at home that they would on company premise, if not more so. The telecommuting policy should also state that the company assumes no responsibility for injuries to third parties who may be present at the employee’s home office. Also, determine what expenses the company will reimburse in this situation.
  • Consider adding some flexibility to telecommuting policies and work hours, given that all K-12 schools are also closed through April 5. Children will be at home with their working parents, which may impact productivity during certain hours of the day.
  • For foreign nationals working under temporary non-immigrant work visas, there may be restrictions on working remotely, changes in location, changes in pay, and changes in hours and other conditions of employment, depending on the particular visa classification. Employers must ascertain whether they are required to notify the U.S. Citizen & Immigration Services of changes in the conditions of employment for employees that are working under such a non-immigrant work visa.

To keep on top of how COVID-19 may impact your workplace, subscribe to Jackson Lewis P.C.’s Disability, Leave & Health Management blog and contact a JL attorney with specific questions.