COVID-19 Crisis Response Center

Answer:

According to the CDC, employees who share a household with someone who is infected should self-quarantine for 14 days after their last exposure (exposure will be ongoing until the person they live with has recovered).

The CDC does not currently recommend special scrutiny or quarantine for those who have been exposed to an asymptomatic person, even if that person has been exposed to someone with COVID-19 (meaning you don’t need to send everyone home to quarantine just because they worked with someone who has a sick family or household member).

Because COVID-19 is widespread in many communities, the CDC recommends that everyone practice social distancing, be alert for symptoms, and follow CDC guidance if directly exposed or if symptoms develop. Remember that the confidentiality of medical information, including that of an employee’s family member, must be maintained per the Americans with Disabilities Act.

Answer:

The Equal Employment Opportunity Commission (EEOC) has issued guidance that employers may take employees’ temperatures during the COVID-19 pandemic because COVID-19 is spreading nationwide. Note that many people may have COVID-19 without a fever, so other safety precautions should not be scaled back just because employees “checked out” upon arrival to work. The CDC summarizes symptoms here. Employees’ body temperatures are considered medical information and must be kept confidential under the Americans with Disabilities Act (ADA).

The main CDC COVID-19 page has general community mitigation strategies as well as certain regional specific strategies. We cannot provide guidance on how to implement temperature checking procedures, but significant precautions should be taken so that you do not actually increase risk by reusing a tool that comes into contact with hands, faces, and/or mouths of multiple employees.

Answer:

If you intend to claim a tax credit under the Families First Coronavirus Response Act (FFCRA) for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records.

A written request for leave from the employee should include the following (and you can’t require that it include more):

• The employee’s name;
• The date or dates for which leave is requested;
• A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
• A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

For a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a statement that no other person will be providing care for the child during the period for which the employee is receiving family medical leave. If the employee’s child is older than 14, the employee should also state that special circumstances exist requiring the employee to provide care.

It’s worth noting that the FFCRA makes expanded Family and Medical Leave Act (FMLA) leave available to an employee who is “unable to work (or telework) due to a need for leave to care for the son or daughter if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” In the case of a child over the age of 14, to claim the tax credit, the IRS is asking that employers collect a statement from the employee noting that a special circumstance exists requiring them to provide care. For questions about tax credit documentation, we recommend consulting with a qualified tax professional.

Answer:

This is certainly a difficult situation to be in. We recommend extreme caution in disciplining or terminating an employee who refuses to work in a location that has shelter-in-place rules in effect, as it poses several types of legal risk. Generally, employees do not have a right to refuse to work based only on a generalized fear of becoming ill if their fear is not based on objective evidence of possible exposure. In that case, you would be able to enforce your usual attendance policies. However, under the current circumstances, where COVID-19 cases are increasing and many cities and states are implementing drastic public health measures to control spread of the virus, we think it would be difficult to show that employees have no reason to fear coming in to work, particularly in a location with a shelter-in-place rule.

Provide Reasonable Accommodation

Employees who are in a high risk category — either because they are immunocompromised or have an underlying condition that makes them more susceptible to the disease — should be granted a reasonable accommodation under the Americans with Disabilities Act (ADA) and/or state law. Employees who live with someone who is at high risk should be granted a similar accommodation. It would be a reasonable accommodation under the circumstances to allow the employee to work from home or take a non-working leave, if working from home is not possible.

Under OSHA rules, an employee’s refusal to perform a task will be protected if all of the following conditions are met:

• Where possible, the employee asked the employer to eliminate the danger, and the employer failed to do so;
• The employee refused to work in “good faith.” This means that the employee must genuinely believe that an imminent danger exists;
• A reasonable person would agree that there is a real danger of death or serious injury; and
• There is not enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

No Punishment or Retaliation for Raising Safety Concerns

An employer cannot retaliate against an employee for raising a safety concern. Additionally, employees who won’t work because of safety concerns may be considered to be engaging in protected concerted activity under the National Labor Relations Act (NLRA) if they have a “good faith” belief that their health and safety are at risk.

Incentivize Employees Instead

Instead of disciplining employees who express fear at this time, we recommend you consider methods to encourage employees to come to work and to help put their minds at ease. Consider emphasizing all of the safety methods you have put in place (e.g., scheduled hand-washing, frequent disinfection of surfaces, social distancing rules, reduced customer capacity, staggered shifts, or more extreme measures if warranted by your industry). We recommend relying heavily on the Centers for Disease Control and Prevention (CDC) guidelines and local health department information in establishing safe working conditions at this time. You might also consider offering premium pay or additional paid time off (PTO) for use in the future to employees who must come to work.

Answer:

Yes, but there’s a right way to do it and a wrong way to do it. In non-pandemic circumstances, employers shouldn’t ask about an employee’s symptoms, as that could be construed as a disability-related inquiry. Under the circumstances, however — and in line with an employer’s responsibility to provide a safe workplace — it is recommended that employers ask specifically about the symptoms of COVID-19.

Here is a suggested communication: “Thank you for staying home while sick. In the interest of keeping all employees as safe as possible, we’d like to know if you are having any of the symptoms of COVID-19. Are you experiencing a fever, cough, shortness of breath, chills, muscle pain, headache, sore throat, or a new loss of taste or smell?”

Remember that medical information must be kept confidential as required by the Americans with Disabilities Act (ADA). If the employee does reveal that they have symptoms of COVID-19, or has a confirmed case, the CDC recommends informing the employee’s co-workers of their possible exposure to COVID-19 in the workplace (but not naming the employee who has or might have it) and directing them to self-monitor for symptoms. Employers should also follow CDC guidance for cleaning and disinfecting.

Answer:

This is a tough situation. The CDC advises employers to send employees home when they have COVID-19 symptoms. If an employee claims their symptoms are from another cause (e.g., allergies, asthma, common cold), the most risk-averse response would be to send them home with pay until the symptoms resolve or they can provide evidence of the other source of the symptoms.

Answer:

Ultimately each company will need to determine how it will fulfill its duty to provide a safe workplace to its employees. It’s very important to pay attention to federal, state, and local authorities to see if they are rolling out specific guidance or prohibitions that you need to be aware of. For example, some locations have issued an order for individuals to “shelter in place,” which drastically limits what workplaces can remain open and provides some guidance for those who can remain working.

Guidance has been changing from day to day and region to region. We recommend keeping up with the latest information on the Centers for Disease Control (CDC) Coronavirus home page, related pages on that site, and your local health department for the most up to date guidance for your region and operations.

Answer:

Most public employers (e.g., cities, municipalities, public school districts) will not be eligible for the tax credits or reimbursements provided in the Families First Coronavirus Response Act (FFCRA). Private nonprofit entities, however, are eligible. 

Answer:

No. The leaves available under the Families First Coronavirus Response Act (FFCRA) went into effect April 1. Leave taken before April 1 is not covered and employers can’t get a tax credit for anything paid out prior to that date.

Answer:

The Families First Coronavirus Response Act (FFCRA) does not apply to companies with 500 or more employees.

A company has fewer than 500 employees if, at the time an employee’s leave is to be taken, it employs fewer than 500 full-time and part-time employees within the United States. In making this determination, include employees on leave, temporary employees who are jointly employed by you and another employer, and day laborers supplied by a temporary agency. Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.

Answer:

The expanded Family and Medical Leave Act, or FMLA (EFMLA) and emergency paid sick leave (EPSL) both cover caring for children whose school or place of care is closed because of COVID-19. EFMLA can be taken for up to 12 weeks, but the first 10 days are unpaid.

Employees can choose to use EPSL to get paid during the first 10 days of unpaid EFMLA; in this case, EPSL and EFMLA are running “concurrently.” If an employee uses EPSL for a non-childcare reason first, or wants to save it for later in case of illness, they would still have 12 weeks of EFMLA available for use and the leaves would not be used concurrently.

Answer:

The Families First Coronavirus Response Act (FFCRA) allows — but does not require — employers to deny leaves under the FFCRA to employees who are healthcare providers or emergency responders on a case-by-case basis. To minimize the spread of the virus associated with COVID-19, the Department of Labor encourages employers to be judicious when exempting employees from the provisions of the FFCRA.

The FFCRA defines healthcare workers as 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 employees of an entity that contracts with any of the above to provide services or to maintain the operation of the facility. This also includes employees of an 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, and any employee that the highest official of a state (or the District of Columbia) determines is an emergency responder necessary for the response to COVID-19.

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, child welfare workers and service providers, public works personnel, and people 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 workers and whose work is necessary to maintain the operation of the facility. This also includes any employee that the highest official of a state (or the District of Columbia) determines is an emergency responder necessary for the response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department of Labor encourages employers to be judicious when using these definitions to exempt employees from the provisions of the FFCRA.

Answer:

No. Employers who are closed — either due to lack of business or a state or local order — do not have to provide these leaves because they don’t have work available. Employees who are furloughed (temporarily not working but still on the payroll) are also not entitled to these benefits. In either of these cases, employees may be eligible for unemployment insurance instead. However, employers should ensure that they are not making furlough or layoff decisions based on an employee’s request or potential need for leave, as this would likely be considered interference or retaliation (and grounds for a lawsuit).

Answer:

To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting Form 7200.

We know that for many of our clients, business slowdowns related to the spread of COVID-19 have made it hard to imagine how they could bear any additional expenses. We encourage anyone with these concerns to read the Treasury, IRS, and Labor Announcement on FFCRA Implementation announcement carefully.

Answer:

Check with your benefits provider before you take action. Eligibility for benefits during a furlough or layoff will depend on the specifics of your plan. For health insurance, if an employee would lose their eligibility during a furlough (or layoff), then federal COBRA or state mini-COBRA would apply. 

Answer:

Remember that companies don’t pay unemployment insurance (UI) claims directly. They are paid by the state, and the state gets funds for that from unemployment insurance taxes that employers pay into regularly. Some employers are concerned that their UI tax rate will increase due to current layoffs, but it appears that many states (perhaps all) will essentially be forgiving COVID-19-related terminations with respect to future increases in UI tax rates.

Most employees who experience reduced hours, furloughs, or layoffs will be eligible for at least some unemployment insurance. Exactly how much will depend on a number of factors. Employees should be encouraged to file as soon as possible and to research rules, benefits, and options themselves to ensure they get the best benefit possible. We recommend that both employers and employees visit their state’s unemployment insurance department website and track local and state news, as departments across the country are updating their rules to facilitate displaced workers during this time.

Answer:

First note that the language used when sending employees home for a period of time is less important than communicating actual intent. Since temporary layoffs and furloughs are only used regularly in certain industries (usually seasonal), do not assume that employees will know what they mean. Be sure to communicate your plans for the future, even if they feel quite uncertain or are only short-term.

Furlough

A furlough continues employment but reduces scheduled hours or requires a period of unpaid leave. The thought process is that having all employees incur a bit of hardship is better than some losing their jobs completely. For example, a company may reduce hours to 20 per week for a period of time as a cost-saving measure, or they may place everyone on a two-week unpaid leave. This is typically not considered termination; however, you may still need to provide certain notices to employees about the change in the relationship, and they would likely still be eligible for unemployment.

If the entire company won’t be furloughed, but only certain employees, it is important to be able to show that staff selection is not being done for a discriminatory reason. Document the nondiscriminatory business reasons that support the decision to furlough certain employees and not others, such as those that perform essential services.

Layoff

A layoff involves terminating employment during a period when no work is available. This may be temporary or permanent. If a company closes down completely but intends to reopen in the relatively near future or has an expected reopening date — at which time some or all employees will be rehired — this would be considered a temporary layoff. Temporary layoffs are appropriate for relatively short-term slowdowns or closures. A layoff is generally considered permanent if there are no plans to rehire the employee or employees because the slowdown or closure is expected to be lengthy or permanent.

Pay for exempt employees (those not entitled to overtime)

Exempt employees do not have to be paid if they do no work at all for an entire workweek. However, if work is not available for a partial week for an exempt employee, they must be paid their full salary for that week, regardless of the fact that they have done less work. If the point is to save money (and it usually is), it’s best to ensure that the layoff covers the company’s established seven-day workweek for exempt employees. Make it very clear to exempt employees that they should do absolutely no work during any week you’re shut down. If exempt employees do any work during that time, they will need to be paid their normal weekly salary.

Pay for nonexempt employees (those entitled to overtime)

Nonexempt employees only need to be paid for actual hours worked, so single day or partial-week furloughs can be applied to them without worrying about pay implications.

We recommend that you engage in open communication with the affected employees before and during the furlough or temporary layoff period.

Answer:

It depends on the employee’s classification.

Nonexempt employees only need to be paid only for actual hours worked. For these employees, you may:

1. Pay the employee for the time, even though they did not work;
2. Require they take the time off unpaid;
3. Require they use any available vacation time or paid time off (PTO)*; or
4. Allow employees to choose between taking an unpaid day or using vacation or PTO.

All four options are compliant with federal law. We generally recommend option 4 — allowing but not requiring employees to use vacation time or PTO. If your office is required to close by health authorities, mayor, or governor and your state has a sick leave law, employees may be able to use accrued paid sick leave during the closure depending on the terms of the applicable sick leave law.

Exempt employees must be paid their regular salary unless the office is closed for an entire workweek and they do no work at all from home. You can, however, require them to use accrued vacation or PTO during a closure if you have a policy that indicates you will do so, or if this has been your past practice.* When it comes to accrued vacation or PTO, it is safest to give employees advance notice if there are situations where you will use their accrued hours whether they like it or not.

*California limits mandatory PTO use without significant notice. Check state law.

Answer:

Yes. Employees should be encouraged to apply as soon as possible.