These 3 Numbers Offer A Simple Way To Understand Contact Tracing In The Workplace

Perhaps the most challenging aspect of encountering a suspected or confirmed case of COVID-19 among your employees as you reopen your business is identifying those employees who worked near the infected worker – and thus must also be quarantined. Luckily, there is a simple numerical sequence you can remember that will enable you to follow the CDC contact tracing guidelines for general businesses: 6-15-48.

You will need infected employees to identify others who worked within 6 feet of them, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms, or later.

Remembering these three numbers will offer you an easy way to navigate the CDC’s often complex and confusing guidance.

Determine Who Worked Within 6 Feet Of The Infected Employee

The first step requires you to inquire with the infected employee about those who worked within close proximity of them. The CDC generally defines a direct exposure to COVID-19 as an individual who is a household member with an infected person, intimate partner with an infected person, or an individual who has had close contact (< 6 feet) for a prolonged period of time with an infected individual.

For Those Who Worked Within 6 Feet, Was It For 15 Minutes Or More?

Another challenge for employers during this pandemic has been the constantly changing guidance from government agencies on how to address various workplace topics. The CDC’s definition of “prolonged period of time” is no exception. The current CDC guidance on this issue states that “recommendations vary on the length of time of exposure, but 15 minutes of close exposure can be used as an operational definition.” Thus, after identifying the employees who worked within six feet of the individual worker, you should determine if any remained within that proximity of the sick employee for 15 minutes or more.

Was The Direct Exposure For A Prolonged Period Of Time During The 48 Hours Before The Infected Employee Exhibit Symptoms Or Later?

The CDC defines the key period of time for determining if an employee was exposed to an infected worker as the “period from 48 hours before symptoms onset until” the infected employee is cleared to discontinue self-isolation. For purposes of contact tracing, the key here is to look at the 48 hours before the sick employee had symptoms and was still working in the workplace. If a sick employee worked on Monday and Tuesday, started showing symptoms at 8:00 a.m. on Wednesday, and immediately left the workplace, you should look for employees working near them starting at 8:00 a.m. on Monday.

Ask The 6-15-48 Employees To Remain Home For At Least 14 Days

After following the above three steps, you have identified the 6-15-48 employees. Although asking the sick employee to identify these workers is likely the best contact tracing tool, you may want to check video surveillance to confirm the accuracy of the 6-15-48 employees the sick worker identifies.

Once identified, the CDC guidance for non-critical businesses provides that the 6-15-48 employees should take the following steps:

• Stay home until 14 days after last exposure and maintain social distance (at least six feet) from others at all times
• Self-monitor for symptoms
  • Check temperature twice a day
  • Watch for fever, cough, or shortness of breath
• Avoid contact with people at higher risk for severe illness(unless they live in the same home and had same exposure)
• Follow CDC guidance if symptoms develop

If your company is part of the nation’s critical infrastructure, you may follow different CDC guidelines in lieu of quarantining 6-15-48 employees who are asymptomatic. However, all companies can use the guidance above to identify exposed, or 6-15-48, workers.

Conclusion

As orders allowing businesses to reopen continue to be issued, you will face new legal and practical challenges in the workplace. Addressing confirmed COVID-19 cases in your workplace will unfortunately become reality for many employers. Now is the time to prepare for such an event. This a constantly evolving area, with new guidance being issued nearly every day. 

5 Things Employers Should Consider When Maintaining Telework During COVID-19 And Beyond

The COVID-19 pandemic has had an unprecedented impact on the workforce, shuttering businesses, prompting mass layoffs, and compelling speedy transitions to remote work. If your company has rushed to implement a temporary remote work practice to accommodate the sudden need for social distancing, or if you have seen the benefits of telework and now choose to maintain what was initially intended as a temporary remote work plan, this article will provide you guidance on the long-term maintenance of remote work plans. Specifically, this article discusses whether work can be performed remotely, the value of up-to-date remote work policies, hours worked considerations, and how to effectively manage remote employee performance and remote worksites. 

1. Which Positions Are Appropriate For Remote Work?

You can measure the viability of remote work in a position by evaluating the feasibility of (a) performing all job functions remotely; (b) modifying the position to exclude non-remote job functions; or (c) modifying the position to be partially remote. In making this determination, and in addition to weighing the health and safety of employees and the community in the current circumstances, you may consider:

• The need to interact in-person with others to perform the job;
• Whether upfront technological costs are outweighed by long-term remote work benefits;
• Security needs and the ability to maintain security remotely;
• How a position becoming remote affects other employees; and
• Predictability of job needs.

Once you decide whether remote work is appropriate and for what period, you should clearly articulate the type of telework arrangement that is acceptable (long-term, short-term, or partial). In partial telework-eligible positions, you should clearly define which job duties may be performed remotely and which require an employee to report in person. Maintaining clear rules and expectations is essential to managing remote workers for pay, leave, and discipline purposes, discussed in more detail below.   

2. Do You Need To Institute Or Update Your Remote Work Policy?

You would would be well-served to have an up-to-date remote work policy. A clear, written policy is a great way to set remote work expectations for your employees and keep them up to date on your company’s official policies and procedures established in response to the COVID-19 pandemic. If you instituted a remote work policy specifically for COVID-19 and intended it for short-term use, or if you utilized an existing telework policy that did not specifically contemplate COVID-19, your policy may need tweaking.

A remote work policy should specify required work hours, meal/rest periods, time and attendance records, and whether employees must obtain permission prior to working outside of work hours (or working overtime), and how that permission should be obtained. It is important to fully consider all your needs and options when instituting a remote policy, so you should contact legal counsel before drafting or updating yours.  

3. How Should You Track Time Of Remote Workers?

In order to track the working time of your remote workers, it is key to have a defined process to ensure accurate records. For example, you may require that employees have an established schedule, keep track of their own hours, and request from management permission to deviate from the established schedule for any reason. Such flexible work schedules may be difficult to manage and require a detailed analysis of the employee’s time and the employee’s leave to determine an employer’s obligations on any given day. Thus, it is important to emphasize to employees that they should be diligent with adhering to established schedules, but there should be an open dialogue for addressing deviations. 

You should also properly determine what kind of time is compensable. It is not always obvious when an employee’s time must be included as hours worked. The following examples represent a few scenarios where the answer could require a more fact-specific analysis:  

• On-call time: Is the employee waiting to be engaged or engaged to wait? This oftentimes depends on the extent to which the employee cannot use the time for their benefit.
• Unauthorized time: Do you have a policy prohibiting unauthorized time, and does it apply to “overtime” in the legal sense, or “extra hours”? The time must be included as hours worked, but the employee may still be disciplined for working without permission.
• Commuting: Though generally commute to work time is not compensable, a non-exempt employee who might telework but must come to the office before or after teleworking for some portion of the day may need to have the intervening travel included as hours worked.
• Salaries: Exempt employees who must be paid on a salary basis and work any portion of a week are generally entitled to pay for the entire week. However, there are some exceptions to this rule. Similar, but different, exceptions may apply to other employees with salaries or guarantees.

You should choose one method for tracking time and apply it uniformly across employees to the extent possible. Inevitably though, because there is no one best method for tracking employee time in all situations, the process will vary by employer, and even by position. Additionally, there might be some flexibility with respect to teleworking employees interrupted for COVID-19 reasons. Accordingly, you should consult with counsel if you have specific questions regarding what constitutes compensable time or the best methods to track compensable time in a given situation.

4. How Do You Manage Employee Performance Remotely?

Successful managers are consistent in applying policies and maintaining open communication with their employees. Specifically, you should ensure that you regularly:

• Meet with remote workers by phone or video conference to establish measurable goals for employee performance, review employee performance, and listen to and address any employee concerns. After these meetings, you should document the conversation in a follow-up email to the employee.
• Maintain up-to-date written policies, including remote work, confidentiality, and security policies. Employees who have a written guide to your expectations will be better prepared to work productively in the home environment and meet management’s expectations.
• Check in with employees regarding time tracking, contemporaneously document any time policy deviations, and notify the employee of violations through the timekeeping system or by email.
• Provide support to employees, including working technology and IT services.
• Discipline employees who fail to follow established policies. However, when imposing discipline, be careful to consider whether doing so would be discriminatory or retaliatory depending on the reason for the policy violation.

You should diligently document any departures from established policy, timekeeping or otherwise, at the time the violation occurs or is discovered. You should also not fear pursuing discipline just because an employee is remote – you discourage misconduct by consistently disciplining employees who abuse telework and deviate from established policies. Conversely, employees who request accommodations in their work schedules for COVID-19 related or other protected reasons should be accommodated to the extent possible.

5. How Do You Maintain Remote Worksites?

You may be liable for injuries on the job even if they occur at a remote worksite. It is therefore important to ensure that teleworkers’ remote worksites are safe and suitable for a productive workday. Employees who are responsible for setting up their own worksites may fail to anticipate safety hazards or may not be concerned about safety risks. This could result in worksite arrangements that are prone to injury, including wire tripping hazards and non-ergonomic workstations.

Accordingly, it is prudent to establish remote worksite guidelines in your remote work policies that indicate your expectations of employee worksite set up and maintenance. You may also ask your managers to conduct periodic checks on an employee’s remote workspace by phone or video conference to ascertain whether they are complying with your expectations. These checks are also useful in discerning whether employees need any technological assistance or tools that would allow them to perform their job functions more efficiently, and whether any business expenses call for reimbursement. If you discover policy violations, you can correct the violations and, if necessary, impose discipline to deter future infractions.

Conclusion

Not every position is perfect for remote work. However, with careful consideration of work needs and position functions, you can take advantage of the many technological tools available and maintain a productive remote workforce. By diligently maintaining two-way discourse with remote employees and educating employees with clear, written, and up-to-date policies, you can ensure that your company is using remote work to its full potential.

Returning Employees To Work Following Unemployment Requires A Tailored 10-Step Plan Of Action

As businesses gradually begin to ramp up and bring employees back to work, you may soon need to figure out what to do when employees who are receiving unemployment benefits refuse to return to work. After all, they may be reluctant or disincentivized to return to the job, especially if they can turn down your offer and still collect robust unemployment benefits.

As with all unemployment issues, the solution may differ from state to state – and employee to employee. But while the answers will vary depending on your workplace and individual employee circumstances, you can take steps now to put yourself in the best position to respond to such situations. We recommend an individualized 10-step plan of action to minimize your return-to-work headaches.   

The $600 Dilemma

With the enactment of the CARES Act, employees qualifying for unemployment benefits are in line to receive an additional $600 benefit payment over and above the regular unemployment payment. This benefit is courtesy of the federal government program and continues through July 31, 2020. In many situations, however, the additional $600 benefit has created a disincentive for employees to return to work. This phenomenon has caused a dilemma for many employers (and employees) as businesses start to reopen.

At the lower end of the economic scale, many workers are receiving more from unemployment than they would earn from their regular wages. However, to remain eligible for unemployment benefits in all but a few circumstances, individuals who have been placed on a temporary layoff related to the COVID-19 pandemic must return to work if called back. And since most state unemployment agencies require or request that you notify them when you call an employee receiving unemployment back to work, the agency will likely deny ongoing benefits unless the employee can demonstrate good cause for refusing the offer.  

“Good Cause” And High-Risk Employees

The determination as to what constitutes good cause for the job refusal, however, will be viewed in light of the COVID-19 pandemic and will be subject to agency review. The U.S. Department of Labor and many states have emphasized that an unreasonable fear over the risk of contracting the virus in the workplace is not enough to constitute good cause, and state agencies will likely deny unemployment claims if this is the only reason offered. 

Several states, however, including Washington, Colorado, Alaska, and Texas, have already adopted rules outlining when an employee’s refusal to return to work may rise to the level of good cause. These rules generally protect unemployment benefits for “high risk” or “vulnerable” employees, such as workers over 65 or with underlying medical conditions.

For example, Texas Governor Abbott has directed the Texas Workforce Commission to continue providing benefits even when the employee refuses an offer of suitable employment where (1) the employee is 65 or older or at higher risk for getting very sick from COVID-19; (2) the employee has a household member at high risk; (3) the employee or a household member has been diagnosed with COVID-19  (and not recovered); (4) the employee is under quarantine due to close contact or exposure to COVID-19; or (5) the employee has child care responsibilities and the school or daycare is closed (and employee has no available alternatives).  

10-Step Return-To-Work Plan To Minimize Unemployment Concerns

Given the complicated issues created by the COVID-19 pandemic, you should be careful to consider the best approach for your workplace and employees. A thoughtful and transparent return-to-work process will help ensure employee safety and boost morale. Here is a 10-point plan you should implement to ensure a smooth return-to-work for your organization.

1. In all cases, the first step is to develop a plan of action to reopen the workplace that provides a safe work environment for the returning employees. The plan should be consistent with guidelines for return to work developed by the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control (CDC). OSHA requires employers to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The plan should include an assessment of risk based upon employee exposure levels to COVID-19 in the workplace, which will vary based upon the workplace and job. For example, a risk assessment will be different for an employee returning to an office setting (low risk) versus the risk to a worker on an assembly line (high risk). The risk assessment should also consider federal, state, and local laws to address high-risk or vulnerable employees.
2. Create and disseminate a return-to-work communication that outlines all the steps you are taking to comply with the recommended safety protocols, including policies to address high-risk and vulnerable employees.
3. As noted above, each state is approaching return-to-work situations differently. You should carefully assess the guidelines that apply to your operation before making any decisions regarding an employee’s refusal to return to work or continued employment.
4. Continue to permit alternative work, including telework or work at an alternative location where feasible, and providing partial employment and work share opportunities.
5. Clearly communicate the details of any return-to-work offer in writing (start date, hours to be worked, wages, job duties and location). 
6. If a return-to-work offer is rejected, develop a plan to address for-cause job refusals, including consideration of high-risk and vulnerable employees.
7. If required, report any refusal to return to work to your state unemployment agency.
8. Be sure to document an individual’s refusal of an offer to return to work. This is particularly important if you have taken out loans under the Paycheck Protection Program. The Treasury Department recently indicated that an employer’s loan forgiveness amount will not be reduced if the employer’s written offer to rehire is refused.
9. If an employee expresses concern about returning to work, keep the lines of communication open and try to determine and address any concerns, if possible. If applicable, engage in the interactive process to determine whether a reasonable accommodation can be made before requiring the employee to return to work.
10. Consider implementing a short-time compensation (STC) program, often called a shared work or workshare program, which allows employers to retain employees on a reduced schedule, while unemployment benefits make up some of the difference in income. 

What Else Should Employers Do?

As you begin the process of reopening, you may want to familiarize yourself with several alerts courtesy of Fisher Phillips LLP : 

• 5 Steps To Reopen Your Workplace According To CDC’s Latest Guidance.  
• 4-Step Plan For Handling Confirmed COVID-19 Cases When Your Business Reopens  
• FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers 

New IRS Guidance Impacting Cafeteria Plan Election Changes and FSA Grace Periods and Rollovers

This week the IRS released two new sets of rules impacting Section 125 Cafeteria Plans.  Notice 2020-33 provides permanent rule changes that include an increase in the amount of unused benefits that Health FSA plans may allow plan participants to rollover from one plan year to the next.  Notice 2020-29 provides temporary rules designed to improve employer sponsored group health benefits for eligible employees in response to the coronavirus pandemic.  The relief provided under each notice is optional for employers. Employers who choose to take advantage of any of the offered plan options will be required to notify eligible employees and will eventually be required to execute written plan amendments.

Notice 2020-33 modifies the amount of annual rollover of unused benefits that Health FSA plans may offer to Plan participants.  Up until now, rollovers have been limited to $500 per Plan Year.  The new rule sets the annual rollover limit to 20% of the statutory maximum annual employee Health FSA contribution for the applicable Plan Year.  Because the statutory maximum is indexed for inflation, most years it increases (in mandated increments of $50).  

The notice provides that the increased rollover amount may apply to Plan Years beginning on or after January 1, 2020.  Because the corresponding annual Health FSA employee contribution limit for those Plan Years is $2,750, the annual rollover limit may be increased up to $550.

The relief provided under Notice 2020-29 falls into two major categories, both of which apply only for calendar year 2020.  First, the IRS introduces several significant exceptions to the mid-year change of election rules generally applicable to Section 125 Cafeteria Plans. Second, the notice contains a special grace period which offers Health Flexible Spending Arrangement (FSA) and Dependent Care Assistance Program (DCAP) Participants additional time to incur eligible expenses during 2020.

The temporary exceptions to mid-year participant election change rules for 2020 authorize employers to allow employees who are eligible to participate in a Section 125 Cafeteria Plan to:

1. make a new election to participate in employer sponsored group health plan coverage if the employee originally declined coverage at open enrollment (depending on if the insurance carrier will allow);
2. change coverage options previously elected during open enrollment;
3. drop group coverage for covered family members or themselves if they will be replacing the coverage for the impacted individual immediately with other coverage;
4. make a prospective election to add, change or drop a Health FSA election; and
5. make a prospective election to add, change or drop a DCAP election.

None of the above described election changes require compliance with the consistency rules which typically apply for mid-year Section 125 Cafeteria Plan election changes.  They also do not require a specific impact from the coronavirus pandemic for the employee.

Employers have the ability to limit election changes that would otherwise be permissible under the exceptions permitted by Notice 2020-29 so long as the limitations comply with the Section 125 non-discrimination rules.   For allowable Health FSA or DCAP election changes, employers may limit the amount of any election reduction to the amount previously reimbursed by the plan.  Interestingly, even though new elections to make Health FSA and DCAP contributions may not be retroactive, Notice 2020-29 provides that amounts contributed to a Health FSA after a revised mid-year election may be used for any medical expense incurred during the first Plan Year that begins on or after January 1, 2020.

For the election change described in item 3 above, the enrolled employee must make a written attestation that any coverage being dropped is being immediately replaced for the applicable individual.  Employers are allowed to rely on the employee’s written attestation without further documentation unless the employer has actual knowledge that the attestation is false.

The special grace period introduced in Notice 2020-29 allows all Health FSAs and DCAPs with a grace period or Plan Year ending during calendar year 2020 to allow otherwise eligible expenses to be incurred by Plan Participants until as late as December 31, 2020.  This temporary change will provide relief to non-calendar year based plans.  Calendar year Health FSA plans that offer rollovers of unused benefits will not benefit from this change.

The notice does clarify that this special grace period is permitted for non-calendar year Health FSA plans even if the plan provides rollover of unused benefits.  Previous guidance had prohibited Health FSA plans from offering both grace periods and rollovers but Notice 2020-29 provides a limited exception to that rule.

The notice raises one issue for employers to consider before amending their plan to offer the special grace period.  The special grace period will adversely affect the HSA contribution eligibility of individuals with unused Health FSA benefits at the end of the standard grace period or Plan Year for which a special grace period is offered.  This will be of particular importance for employers with employees who may be transitioning into a HDHP group health plan for the first time at open enrollment.

As mentioned above, employers wishing to incorporate any of the allowable changes offered under Notices 2020-29 and 2020-33 will be required to execute written amendments to their Plan Documents and the changes should be reflected in the Plan’s Summary Plan Description and/or a Summary of Material Modification.  Notice 2020-29 requires that any such Plan Amendment must be executed by the Plan Sponsor no later than December 31, 2021.

Notice & Documentation Requirements Under the New Paid Sick and FMLA Leave Law

Proper Timing for Requesting Leave

1. Employees name
2. Date of leave request
3. Qualifying reason, and
4. Oral or written statement that the employee is unable to work due to qualifying reason

What documentation must employee provide to prove need for leave?  

• Employee subject to a federal, state or local quarantine or isolation order related to COVID-19: the name of the governmental entity that issued the Order
• A health care provider advises an employee to self-quarantine: the name of the health care provider who advised the employee to self-quarantine.
• Employee caring for an individual subject to a quarantine order or been advised by a health care provider to self-quarantine: either the name of the governmental entity that issued the Order to which the individual being cared for is subject, OR, the name of the health care provider who advised the self-quarantine.

• Employee must provide the name of the child, name of the school, place of care or child care provider that has become unavailable (keep in mind this could be family or a friend), and a representation that “no other suitable person will be caring for the child during the period the employee is taking leave

Steps to Reopening Your Workplace

Yesterday, the CDC released guidance for assisting employers in making decisions to reopen (or reopen for high risk employees) during the COVID-19 pandemic.

Besides continuing to follow recommendations issued by the state and local health departments, you can consider these 5 steps: 

1. Preliminary Questions Before Reopening

According to the CDC guidance, you should consider three questions when deciding whether to reopen:

• Are you in a community no longer requiring significant mitigation?
• Will you be able to limit non-essential employees to those from the local geographic area?
• Do you have protective measures for employees at higher risk (e.g. teleworking, tasks that minimize contact)?

CDC states you should only consider reopening if you can answer “yes” to all three questions.

2. Take Recommended Safety Actions

Once you feel comfortable that your organization can satisfy the three preliminary questions, you should next adopt the CDC’s recommended safety actions. They include:

• Promoting healthy hygiene practices;
• Intensifying cleaning, disinfection
• Practice Social Distancing (e.g., small static groups, no large events);
• Canceling non-essential travel, and encouraging alternative commuting and telework;
• Spacing out seating (more than six feet) and staggering gathering times;
• Restricting use of any shared items (phones, tools, etc) and spaces; and
• Training all staff in the above safety actions

3. Implement Safeguards for Ongoing Monitoring Of Employees

Next, before reopening, you should implement safeguards for the ongoing monitoring of employees. They include:

• Encouraging employees who are sick to stay home;
• Establishing routine, daily employee health checks;
• Monitoring absenteeism and having flexible time off policies;
• Having an action plan if a staff member gets COVID-19; (we’ll have a blast next week to address this)
• Creating and testing emergency communication channels for employees; and
• Establishing communication with state and local health authorities.

4. Prepare Your Physical Workspace For Reopening

The final step before you reopen your doors involves preparing your location for the reentry of workers, customers, guests, and other visitors. The CDC has released guidance for cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes. Review this guidance when implementing cleaning procedures at your facilities after shelter-in-place orders are lifted. 

5. Maintain Vigilance

Your work is not done once you open your doors and welcome back your workers. The CDC recommends that you maintain routine cleaning and disinfection procedures after reopening to reduce the potential for exposure.

OSHA Provides Recordkeeping Guidance To Employers For COVID-19 Cases

The Department of Labor’s Occupational Safety and Health Administration issued guidance for enforcing OSHA’s recordkeeping requirements for COVID-19 cases. OSHA recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.

When Does Your Recordkeeping Obligation Kick In?

According to the guidance, COVID-19 is a recordable illness, and must be recorded on an employer’s OSHA 300 log if:

1. The case is a confirmed case of COVID-19 (meaning an individual has at least one respiratory specimen that tests positive for SARS-CoV-2, the virus that causes COVID-19);
2. The case is work-related (as defined by 29 CFR § 1904.5); and
3. The case involves one or more of the general recording criteria as outlined by OSHA: if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond “first aid,” or loss of consciousness (OSHA provides a specific and complete definition of “first aid” in 29 CFR § 1904.7(b)(5)(ii)).

Limited Enforcement Waiver

Recognizing the difficulty in determining whether COVID-19 was contracted while on the job, OSHA will not enforce its recordkeeping requirements that would require employers in areas where there is ongoing community transmission to make work-relatedness determinations for COVID-19 cases, except where:

1. There is objective evidence that a COVID-19 case may be work-related; and
2. The evidence was reasonably available to the employers.

This waiver of enforcement does not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions in areas where there is ongoing community transmission.  These employers must continue to make work-relatedness determinations. 

This new guidance provides employers with one fewer issue to worry about in their response efforts to an employee with a confirmed case of COVID-19. Employers should continue to focus on minimizing the risk of transmission in the workplace.  

FFCRA Documentation and Record Keeping: What Employers Need to Know

The close of March and open of April 2020 brought in both Q2 of 2020 and some updated guidance from the U.S. Department of Labor (DOL) and the U.S. Internal Revenue Service (IRS) on the documentation needed for leaves under the Families First Coronavirus Response Act (FFCRA). The DOL’s Regulations, called a temporary rule, include substantial guidance related to the information an employer should (and in some cases must) obtain from an employee requesting leave. The DOL updated its FFCRA Questions and Answers (DOL Q&As) as well in conjunction with its Regulations.

When read in conjunction with the FAQs published by the IRS on March 31, 2020 (“IRS FAQs”) regarding the employer tax credits associated with paid FFCRA leave, the DOL’s Regulations answer some questions, but leave others unanswered. Somewhat surprisingly, the Regulations do not mention specific documentation for certain types of leave available under FFCRA, such as a copy of the doctor’s order or advice to quarantine or isolate. Any records that are required must be retained by the employer for a period of four years. 

Records Related to Small Employer Exemption

If a small employer decides to deny emergency paid sick leave or expanded family and medical leave to an employee whose child’s school or place of care is closed, or whose childcare provider is unavailable (which is the only type of leave a small employer can deny), the employer must document the basis for the exception. 

Although the employer should not send this documentation to the DOL, it should retain such records for its own files.

Information Supporting Reasons for Leave

The Regulations require that employees requesting leave provide their employers a “signed statement,” in addition to the documentation (and information) noted below, which must contain the following: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. The Regulations also outline what an employee must provide his or her employer for each qualifying reason for leave. The information required for each qualifying reason is summarized below.
 

• Leave because of a federal, state, or local quarantine or isolation order related to COVID-19. The employee must supply the employer with the name of the government entity that issued the order.
• Leave because a health care provider advised the employee to quarantine or self-isolate due to concerns related to COVID-19. The employee must supply the employer with the “name of the health care provider who advised” the employee to quarantine or self-isolate due to concerns related to COVID-19. Note that these “concerns” are limited to three COVID-19-related situations:  (1) the employee has COVID-19; (2) the employee may have COVID-19; or (3) the employee is particularly vulnerable to COVID-19. Although the Regulations do not state it is required, employers may want to at least include these situations on their request forms to show that the leave is being requested – and provided – for a covered reason.
• Leave because the employee is caring for an individual who is subject to an order by a federal, state, or local official to quarantine or self-isolate or who has been advised by a health care provider to quarantine or self-isolate due to concerns related to COVID-19. The “individual” to whom the employee is providing care must be an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-isolated. For this type of leave, ‘‘individual’’ does not include persons with whom the employee has no personal relationship. Although not specifically required by the Regulations, this detailed definition implies the need to request information regarding the relationship, and the collection of such information is supported by the IRS FAQs. As with similar leaves for the employee’s own circumstances, the employee must supply the employer with the name of the governmental official or entity that issued the quarantine or isolation order or the name of the health care provider who advised the individual for whom the employee is caring to self-quarantine due to concerns related to COVID-19. If the leave relates to advice from a health care provider, the same limited “concerns” noted above also apply to this form of leave, and employers may want – at a minimum – to include that list on their request forms to show that the leave is being requested for a covered reason.
• Leave because the employee is caring for his/her son or daughter whose school, place of care or childcare provider has been closed, or the childcare provider of such son or daughter is unavailable, for reasons related to COVID-19. An employee must supply the employer with (1) the name of the son or daughter for whom the employee is caring; (2) the name of the school, place of care or childcare provider that has closed or become unavailable; and, (3) a representation that no other suitable person will be caring for the child during the leave.
  • NOTE: The answer to IRS FAQ No.44 notes that, in order to receive a tax credit for the paid sick leave or expanded family and medical leave for this reason, if the child is older than 14 and the leave is during daylight hours, the employee must provide a statement that special circumstances exist requiring the employee to provide care.

The Regulations do not list any additional information required for the purpose of a leave taken because the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

The Regulations state that employers may not require documentation beyond what is allowed for by the Regulations. In addition to the information specified above, the Regulations state generally, that employers may also request additional information or documentation needed to support a request for tax credits pursuant to the FFCRA. According to the IRS, employers are not required to provide leave if employees requesting leave fail to provide “materials sufficient to support the applicable tax credit.” Taken together, the Regulations and the IRS FAQs suggest that employers can require the information specifically listed under the FCCRA Regulations and any specific information that the IRS requires for a tax credit (such as the information noted above concerning children older than 14). Requiring anything beyond those categories potentially violates the FFCRA.

Notably, if an employee fails to provide the required information or documentation, the employer must provide that employee an opportunity to correct the error and provide the required documentation before denying the request for leave.

What Employers Need to Keep (and for How Long)

An employer is required to retain all documentation provided to support the need for leave for four years, regardless of whether leave was granted or denied. If an employee provided oral statements to support his or her request for paid sick leave or expanded family and medical leave, the employer is required to document and retain such information for four years also. Similarly, if an employer denies an employee’s request for leave pursuant to the small business exemption, the employer must document its authorized officer’s determination that the criteria for that exemption are satisfied and retain such documentation for four years.

The Regulations and the IRS FAQs also explain what documents the employer should create and retain to support its claim for tax credits from the IRS. Employers must maintain the following records for at least four years: 
 

1. Documentation to show how the employer determined the amount of emergency paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including “records of work, telework and qualified sick leave and qualified family leave;”
2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
3. Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
4. Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941; and
5. Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.

Although the DOL’s Regulations and the IRS’s FAQs appear to be in agreement regarding the documentation needed to support an employer’s claim for tax credits from the IRS, we expect more detail from the IRS on this topic in the near future. We hope the additional detail from the IRS provides more clarity on categories 1, 2, and 5 of the records that need to be retained by employers. A more detailed explanation of how employers may claim tax credits, and what information will be needed, can be found at https://www.irs.gov/forms-pubs/about-form-7200 and https://www.irs.gov/pub/irs-drop/n-20-21.pdf.

We continue to monitor future guidance from the DOL and IRS and other legislation that may affect employers during this challenging time. 

Florida Governor Issues Safer At Home Order – What Do Businesses Need To Know?

Florida Governor Ron DeSantis issued a Safer At Home Order for the State of Florida yesterday. It goes into effect just after midnight (at 12:01 am) on the morning of Friday, April 3, 2020, and is set to expire on Thursday, April 30, 2020. The Order limits movement and personal interaction outside of the home to only those necessary to obtain or provide essential services, or to conduct essential activities.

The term “essential services” is defined as and encompasses the list detailed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce. Essential services also include the businesses and activities designated by Florida Executive Order 20-89 and its attachment, which consists of the list propounded by Miami-Dade County Emergency Order 07-20, as amended in multiple orders. Other essential services may be added under the Order and nothing in the Order prohibits individuals from working from home.

Thus, when determining whether your business qualifies as an essential business, you should consult the Department of Homeland Security’s Guidance and Miami-Dade County Emergency Order 07-20 and its amendments. The Order also indicates that a current list of essential services will be maintained on the Florida Department of Health’s website. For purposes of the Order, essential activities also include attending religious services, participating in recreational activities (consistent with social distancing guidelines), taking care of pets, and caring for or otherwise assisting a loved one or friend.

State v. Local Law

Governor DeSantis has taken a gradual approach to social distancing measures related to COVID-19. On March 17th, he ordered all bars and restaurants across the state to discontinue all dine-in service. On March 27th, he ordered all persons who enter the state of Florida after being in New York, New Jersey, and Connecticut to isolate or self-quarantine for two weeks. 

In the meantime, the state’s largest counties, including Miami-Dade, Broward, Palm Beach, Orange, and Hillsborough, issued Stay at Home or Safer at Home orders requiring residents to stay home, with certain exceptions, and ordering all non-essential businesses to close, or cease in-person operations. In some cases, however, these Orders were only limited to those non-essential businesses that could not perform their work in adherence with the Centers for Disease Control guidance regarding social-distancing and other sanitary matters. Miami-Dade’s business closure order went into effect on March 19, while Orange County and Hillsborough followed on March 26 and 27, respectively.

Governor DeSantis’ Order supersedes any order issued by local officials.

 

What Is An Essential Business?

The U.S. Department of Homeland Security Essential Critical Infrastructure Workforce Guidance and Miami-Dade County Emergency Order 07-20 and its amendments include the following as Essential Businesses:

HEALTH CARE OPERATIONS 

• Research and laboratory services;
• Hospitals, doctors’ and dentists’ offices, clinics;
• Walk-in-care/Urgent care health facilities;
• Veterinary and animal health services;
• Elder care;
• Rehabilitation facilities, physical therapists, and therapists;
• Mental health professionals and psychiatrists;
• Medical wholesale and distribution;
• Home health care workers or aides;
• Nursing homes, or residential health care facilities or congregate care facilities;
• Medical supplies and equipment providers.

INFRASTRUCTURE, TRANSPORTATION, AND MARINE SERVICES

• Utilities, including power generation, fuel supply and transmission;
• Public water and wastewater;
• Telecommunications and data centers;
• Airports/Airlines;
• Taxis;
• Other private transportation providers providing transportation services via automobile, truck, bus, or train.
• Transportation infrastructure, such as bus, rail, or for-hire vehicles and garages.
• Private and municipal marinas;
• Boat launches;
• Docking services;
• Fueling services;
• Marine supply and other marina services.

MANUFACTURING

• Food processing, including all foods and beverages;
• Chemicals;
• Medical equipment and instruments;
• Pharmaceuticals;
• Safety and sanitary products;
• Telecommunications;
• Agriculture/Farms;
• Paper products;
• Factories;
• Manufacturing facilities;
• Bottling plants;
• Other industrial uses.

RETAIL

• Grocery stores and supermarkets, including all food and beverage stores;
• Food banks;
• Pharmacies;
• Convenience stores;
• Farmer’s markets, and farm and produce stands;
• Gas stations;
• Restaurants/bars (but only for take-out/delivery);
• Hardware and building material stores;
• Other establishments engaged in the retail of food products, pet supply, and such other household consumer products as cleaning and personal care products;
• Other stores that sell groceries and other non-grocery products, and products necessary to maintaining the safety, sanitations, and essential operations of residents;
• Businesses that ship or deliver groceries, food, goods, or services directly to residences;
• Restaurants and other facilities that prepare and serve food, but only for delivery, takeout, or drive-thru services.

SERVICES

• Trash and waste recycling collection, processing and disposal;
• Mail and shipping services;
• Laundromats/dry cleaning;
• Building cleaning and maintenance;
• Child care services;
• Auto repair;
• Warehouse/distribution and fulfillment;
• Funeral homes, crematoriums and cemeteries;
• Storage for essential businesses;
• Sales of computer or telecommunications devices and the provision of home telecommunications;
• Legal and accounting services as necessary to assist in compliance with legally mandated activities.

NEWS MEDIA

• Newspapers;
• Television;
• Radio;
• Other media services.

FINANCIAL INSTITUTIONS

• Banks and other related financial institutions;
• Insurance;
• Payroll;

PROVIDERS OF BASIC NECESSITIES TO ECONOMICALLY DISADVANTAGED POPULATIONS

• Homeless shelters and congregate care facilities;
• Food banks;
• Human services providers whose functions include the direct care of patients;
• Businesses providing food, shelter, social services, and other necessities of life for economically disadvantaged or otherwise needy individuals.

CONSTRUCTION

• Skilled trades such as electricians and plumbers;
• Other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes;
• Open construction sites, irrespective of the type of building;
• Architectural services;
• Engineering services;
• Land surveying services.

DEFENSE

• Defense and security-related operations supporting the U.S. Government or a contractor to the U.S. government.

SERVICES NECESSARY TO MAINTAIN THE SAFETY AND ESSENTIAL OPERATIONS OF RESIDENCES OR OTHER ESSENTIAL BUSINESSES

• Law enforcement;
• Fire prevention and response;
• Emergency management and response;
• Building cleaners or janitors;
• Local governments.

PET CARE

• Pet supply stores;
• Veterinarians;
• Pet boarding facilities;
• Animal shelters or animal care or management.

AGRICULTURE

• Food cultivation, including farming, livestock, and fishing.

AUTOMOBILE AND VEHICLE-RELATED OPERATIONS

• Gas stations;
• Auto-supply stores;
• Auto-repair facilities;
• New and used automobile dealerships;
  • However, for each of the above, social distancing as advised by the CDC must be practiced.

HARDWARE STORES AND TRADESMEN

• Hardware stores;
• Contractors;
• Appliance repair personnel;
• Exterminators;
• Fumigators;
• Landscaping businesses;
• Pool care services;
• Service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures.

EDUCATION

• Private colleges, trade schools, and technical colleges;
  • However, the above are only deemed essential as needed to facilitate online or distance learning;
• University, college, or technical college residence halls may also remain open to the extent needed to accommodate students who cannot return to their homes.

LOGISTICS

• Warehouses;
• Trucking;
• Consolidators;

SENIOR CARE

• Home-based care for seniors or adults;
• Assisted living facilities;
• Nursing homes;
• Adult day care centers;
• Senior residential facilities.

CHILDCARE

• Home-based care for children;
• Childcare facilities providing services that enable employees exempted to work as permitted, subject to group size and spacing restrictions.

OTHER OPERATIONS DEEMED ESSENTIAL

• Businesses providing mailing and shipping services, including post office boxes;
• Laundromats, dry cleaners, and laundry service providers;
• Businesses that supply office products needed for people to work from home;
• Businesses that supply other essential businesses with the support or supplies necessary to operate, and which do not interact with the general public;
• Businesses operating at any airport, seaport, or other government facility, including parks and government offices;
• Office space and administrative support necessary to perform exempted essential activities;
• Businesses providing propane or natural gas;
• Mortuaries, funeral homes, and cemeteries;
• Firearm and ammunition supply stores;
• Businesses providing services to any local, state, or Federal government, including municipalities, pursuant to a contract with such government;
• Any business that is interacting with customers solely through electronic or telephonic means, and delivering products via mailing, shipping, or delivery services.

What Does This Mean For Employers?

Employers with operations in Florida should review the CISA guidance and Miami-Dade County Emergency Order 07-20, and its amendments, to determine if they are deemed non-essential and must close beginning on April 3, 2020 at 12:01 am. 

Employers should also be prepared to address concerns from older employees and employees with underlying significant health conditions regarding whether or not they must come in to work. Employers should also carefully assess the availability of telework for these employees, as the availability of telework has significant implications for whether they are entitled to paid leave.

We will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate.

Key Provisions of the CARES Act