6 Factors Employers Must Consider When Taking Employees’ Temperatures

Employers may be required to take the temperatures of employees when businesses begin to reopen in the coming days and weeks following the expiration of many states’ stay-at-home orders. Screening for fevers is a task never previously undertaken by many companies. Given that many states will require or highly recommend this practice, now is the time for to consider what precautions and procedures to undertake to implement this safety measure.

You should consider these six issues when contemplating whether to take temperatures at your workplace:

1. Do You Have To Do It?
   Unless required by a local or state order, taking temperatures is not required in most workplaces. Doing so will require extensive planning, training, and could even be quite expensive. In addition, many individuals infected with COVID-19 won’t exhibit any symptoms, and thus temperature screening likely won’t prevent all workers who can transmit the disease from entering your worksite.
   
   Although the CDC recommends screening employees for fevers of more than 100.4 degrees Fahrenheit, keep in mind some states make recommend different thresholds. If you decide to screen your employees, also plan to check the temperatures of guests, clients, vendors, and contractors to ensure a safe work environment.
   
   
2. Training And Personal Protective Equipment For Those Taking Temperatures
   The safety of all employees is paramount, but those administering temperature screenings will be especially vulnerable to hazards. If you require employees to be within six feet of any individual who may have COVID-19, the Occupational Safety and Health Administration (OSHA) recommends that they wear personal protective equipment (PPE) consisting of some combination of gloves, a gown, a face mask, and/or a face shield or goggles.
   
   The screening employees should also be trained on the required PPE under OSHA’s PPE standard. You should also prepare a job hazard assessment and PPE certification related to the screening. To the extent that screeners may also be exposed to bloodborne pathogens (BBP), such as mucous or saliva, you should ensure they are properly trained under OSHA’s BBP standard – which requires employers to prepare an exposure control plan.
   
   Keep in mind that, where not required by a local or state order, the CDC allows employers to screen employees for COVID-19 symptoms, including a fever, without ever touching or interacting with them. You can do so by standing more than six feet away and asking the employee to confirm they don’t have a temperature and making a visual inspection of the employee (e.g., looking for flushed cheeks or fatigue). Only under this method could the employee screener not be required to wear PPE.
   
   
3. Maintaining Social Distancing
   Not only should screening employees be protected, safety measures should also be taken for workers waiting in line to be screened. This includes ensuring employees stand six feet or more from each other while they wait to have their temperature taken.
   
   
4. Logistics
   You may have to screen 50 or more employees prior to the beginning of each shift. This likely will cause delays and create disruption to normal production activities. Be prepared to create outdoor waiting areas (e.g. tents and other temporary structures) where employees must be in lengthy lines prior to entering the facility. Employee privacy, especially where screening takes place and results are announced, should be accounted for during this time.
   
   
5. Privacy Concerns
   Employee privacy concerns will be prevalent during the employee screening process. The Equal Employment Opportunity Commission (EEOC) has cautioned that employers can ask employees if they are experiencing symptoms of COVID-19, including taking their temperatures, provided that all biomedical information is maintained as a confidential medical record, and separate from the employee’s personnel file. Some states, such as California, require employers to provide a notice to all employees prior to screening them for biomedical data.
   
   For many businesses, maintaining employee privacy can be challenging as you may not have the experience or knowledge to ensure compliance. To mitigate these issues, and if not required by a governmental order, avoid collecting or storing an employee’s biomedical information to the extent possible. Instead, use an instantaneous-reading thermometer and show the employee their temperature simultaneously with the screening.
   
   
6. Wage Issues
   Keep in mind that employees may claim that their time waiting in line or being screened for a fever before their shift is compensable and thus they should be paid for it. Although no case law or Department of Labor guidance on point currently exists on this topic, it is recommended that you err on the side of paying employees throughout the screening process. This also requires you to implement a system to have employees “clock in” when they get in line for screening and to document their time.

What Should Employers Do?

As you begin the process of reopening, you may want to familiarize yourself with several pieces of information: 

• 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 – in the event you learn of a positive case at your workplace. 

For a more thorough analysis of the many issues you may encounter from a labor and employment perspective, we recommend you review  FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and FP Resource Center For Employers.

DOL and IRS Announce Emergency COVID-19 COBRA Rules

On April 29, 2020, the Department of Labor (DOL) and the Internal Revenue Service (IRS) announced in a Notice a “pause” in the timelines that affect many COBRA and HIPAA Special Enrollment Period timelines during the National Emergency due to the COVID-19 pandemic.

The National Emergency declaration for COVID-19 was issued on March 13, 2020, and as of the date of this writing, is still in effect. However, for purposes of COBRA in the eyes of the DOL, the “pause” date is set to begin on March 1, 2020. According to the Notice, the period from March 1 through 60 days after the date the National Emergency is declared ended is known as the “Outbreak Period.”

COBRA Timeline Changes During National Emergency

Normally, group health plan Qualified Beneficiaries (QBs) have 60 days from the date of a COBRA qualifying event to elect COBRA coverage, or in the case of a second COBRA qualifying event, to make a new COBRA election. Once a COBRA election is made, the first payment (going back to the date of the COBRA qualifying event) is due no more than 45 days later. After that, plan sponsors must allow at least a 30 day grace period for late COBRA payments.

According to the Notice, all of these timelines are affected. The 60-day election “clock” is paused beginning March 1, 2020 or later until the the end of the Outbreak Period. Similarly, the 45-day first payment “clock” is also paused during the Outbreak Period, as is the 30-day grace period for making COBRA payments.

Example

ABC Company’s group health plan is subject to COBRA continuation coverage. Jane Jetson and her family are covered under ABC’s group health plan. On February 1, 2020 Jane terminates employment at ABC, and on February 5th, Jane receives her COBRA election notice informing her she has 60 days from February 1st to make an election. Normally, that election period would end on April 1, 2020, 60 days from February 1st.

However, with the new DOL/IRS Notice, the “pause” button on the 60 day election period was hit on March 1st, the beginning of the Outbreak Period, so the 60 day clock stops at 29 days and doesn’t resume until the end of the Outbreak Period.  For sake of this example, let’s assume the National Emergency declaration is lifted on May 31, 2020. On July 30, 2020, 60 days after May 31st and thus the end of the Outbreak Period, the “pause” button is lifted and the COBRA election clock restarts for another 31 days to complete the 60 day COBRA election period, which now would end on August 30, 2020.

Continuing with the example and assumptions, if Jane did make her COBRA election to continue coverage on August 30th (the last day to do so), the 45 day clock to make the first payments back to February 1st would begin, and she would have to make all seven months’ payments by October 14, 2020. Of course, by that date she’d also owe payments for September and October as well, although she’d be in the middle of the grace period for October.

HIPAA Special Enrollment Period

Similarly, the 30 day HIPAA Special Enrollment Period (SEP) for qualified changes of status that impacts group health plan enrollment changes is also “paused” until after the end of the Outbreak Period.

Example

Homer Simpson also works for ABC Company, and has elected not to participate in ABC’s group health plan since he has coverage through his spouse Marge’s employer’s group health plan at XYZ Company. On March 15, 2020, Homer and Marge have a baby named Bart, and decide that Homer would like to cover his entire family under ABC’s plan. In normal times, Homer would have 30 days from the date of Bart’s birth to enroll in ABC’s group health plan utilizing the HIPAA SEP.

However, under the DOL/IRS Notice, that 30-day clock is on “pause” until the end of the Outbreak Period. Using the same assumption in the example above, that clock would start on July 30th, and Homer would have until August 30th to enroll his entire family.

Action Items for Plan Sponsors

Plan sponsors will need to pay close attention to this Notice and make proper adjustments in their established COBRA and HIPAA procedures to accommodate it. 

Florida Governor Amends Safer-At-Home Order And Announces Plan To Reopen State

Florida Governor Ron DeSantis just extended his Safer At Home Order for the State of Florida but announced his plan to gradually re-open the state pursuant to a new Order that will go into effect just after midnight (at 12:01 am) on the morning of May 4, 2020. The new Order initiates the first of three phases to re-open every county in Florida except for Miami-Dade, Broward and Palm Beach counties. Additionally, local governments in Florida will also be able to have more restrictive policies in place if they desire. What do Florida employers need to know?

Essential And Non-Essential Businesses Are Permitted To Operate Pursuant To CDC And OSHA Guidelines

The new Order permits all services and activities currently allowed under the previous Safer-at-Home Order. Any non-essential businesses that were not previously permitted to be open can reopen as long as they also follow CDC and OSHA guidelines. However, The Order contains the following industry specific restrictions:

• Schools: Schools will remain closed during Phase One and can continue conducting distance learning.
• Healthcare: Hospitals and senior living facilities are prohibited to have visitors, and those interacting with residents and patients must adhere to strict protocols regarding hygiene. However, elective surgeries can resume, as clinically appropriate at facilities that adhere to Centers for Medicare & Medicaid Services (CMS) guidelines. Additionally, any facility that performs elective procedures must be able to immediately convert for treatment of COVID-19 patients in a surge capacity situation, must have adequate PPE, has not sought government assistance regarding PPE supplies since resuming elective procedures, and has not refused to provide support to and proactively engage with skilled nursing facilities, assisted living facilities, and other long term care residential providers.
• Hospitality: Sit-down dining establishments can operate at 25% occupancy under strict physical distancing protocols. However, bars will remain closed.
• Retail: Storefronts may operate at no more than 25% of their building occupancy.
• Museums and libraries: Can operate at no more than 25% of their building occupancy if permitted by local government. Also, any interactive functions or exhibits including child play areas must remain closed.
• Miscellaneous: Gyms, movie theatres, and professional services (such as hair salons and barbershops) will remain closed.

Every business is required to continue to follow guidelines issued by the CDC and OSHA. These guidelines include:

• Promoting healthy hygiene practices;
• Intensifying cleaning, disinfection (e.g., small static groups, no large events);
• Avoiding non-essential travel, and encouraging alternative commuting and telework;
• Spacing out seating (more than 6 feet) and staggering gathering times;
• Restricting use of any shared items and spaces; and
• Training all staff in above safety-actions.

The CDC also recommends that businesses only reopen after they have implemented safeguards for the ongoing monitoring of employees, including:

• 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;
• Creating and testing emergency communication channels for employees; and
• Establishing communication with state and local health authorities.

Senior Citizens And Individuals With Significant Underlying Medical Conditions

The Order strongly encourages individuals who are older than 65 and those with significant underlying medical conditions to stay at home. They should take all measures to limit the risk of exposure to COVID-19 such as wearing masks during face-to-face interactions. Additionally, the Order encourages individuals to avoid socializing in groups of more than 10.

Social Distancing And Other Guidelines

Additionally, all persons in Florida should practice social distancing, avoid nonessential travel, and adhere to guidelines from the CDC regarding isolation for 14 days following travel on a cruise or from any international destination and any area with significant presence of COVID-19. The Order also extends Governor DeSantis’ Orders regarding airport screening and isolation of individuals traveling to Florida. Notably, there is an exception for these orders for persons involved in military, emergency, health or infrastructure response or involved in commercial activity.

Criminal Penalties

A violation of the Order is a second-degree misdemeanor which is punishable by imprisonment not to exceed 60 days, a fine not to exceed $500.00 or both.

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 essential or non-essential.  

Before reopening, you should have a thorough plan in place to establish a safe and healthy workplace and share that plan to provide employees peace of mind. You should also be prepared to address concerns from older employees and those with underlying significant health conditions regarding whether or not they must come in to work. You should also carefully assess the availability of telework for these employees.

As you begin the process of reopening, you should familiarize yourself with some useful info: 

• 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 

FAQs For Employers Navigating Relaxed I-9 Verification Requirements

Although the Department of Homeland Security (DHS) recently relaxed I-9 requirements for employers operating remotely as a result of the COVID-19 crisis, employers are still left with some questions on how to meet their obligations in this uncertain time. 

The Basics: What Are The New Rules?

Under federal guidance, employers are temporarily no longer be required to review an employee’s identity and work authorization documents in the employee’s physical presence.  Instead, inspection of these documents can be conducted remotely (e.g., by video, fax, or email).  

According to the U.S. Citizenship and Immigration Services (USCIS), “if employers are performing inspections remotely (e.g., over video link, fax or email, etc.) they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In addition to completing Section 2, Employers also should enter ‘COVID-19’ in the Additional Information field.”

Then, when “normal operations resume,” all employees whose documents were presented via remote verification must, within three business days, undergo the required “in-person” examination of documents. The person conducting the physical examination should write the words “documents physically examined” in the Additional Information box in Section 2, and should include their name and the date of inspection.  

It is important to keep in mind that the DHS’s relaxed requirements apply only to employers who are operating remotely. According to the guidance, if there are employees physically present at a work location, then you must follow the normal in-person physical inspection rules. However, if newly hired employees or existing employees of an employer who still has employees present at a work location are subject to COVID-19 quarantine or lockdown protocols, “DHS will evaluate this on a case-by-case basis.”

Frequently Asked Questions About The New I-9 Guidance

While employers appreciate the DHS’s temporary relaxation of the in-person document inspection rules, some questions are not addressed by either DHS or USCIS. Here are the most common questions we have seen and the best practices to follow.

1. How is an employee expected to fill out Section 1?
   The announcement makes clear that employees are still required to fill out their section (Section 1) of the I-9 no later than the first day of employment. But DHS’s announcement is silent on how employees will complete Section 1 of the I-9 if they are operating remotely.
   
   You can presumably email the Form I-9 to the employee, have the employee complete Section 1, sign, date, scan and email the completed Section 1 back to you. For employees without a home printer and/or scanner, you should consider having them provide Section 1 in the same way they provided their documents (by video, smart phone photo, fax or other electronic method).
   
   Once operations resume, the employee should bring the original signed Section 1 to your worksite.
   
   
2. If we have a policy of not keeping copies of documents presented as part of the I-9 process, what should we do with our copies of the remotely provided documents after the in-person inspection occurs?
   As noted, the announcement clearly requires employers conducting remote document reviews to keep copies of the documents provided to them (for example, by taking screen shots, pictures of the documents by camera phone, and other methods). But the announcement is silent as to what you should do with those electronic copies of documents after the in-person document review, in the event you do not, as a policy, keep copies of documents submitted as part of the I-9 process.
   
   The safest course of action is to print out the electronic copies of documents received remotely. But instead of keeping them with the employee’s I-9, keep them in a separate file until DHS clarifies what should be done with them.
   
   
3. Is the employee required to bring in hard copies of the same documents they provided remotely?
   The government has made it clear that you are not supposed to request or even suggest that employees provide any specific document or documents when filling out a Form I-9. Here, the announcement seems to assume employees will bring in for inspection the same document or documents they provided remotely, but does not specifically say so. 
   
   Because the employee has already made their choice of documents when they provided them remotely, DHS may find it reasonable for you to ask to see hard copies of the same document(s). If the employee refuses or has lost one or more of those document(s), you may consider filling out a new Section 2 and attaching it to the original Section 2, with a brief explanation in the Additional Information field.
   
   
4. What triggers the determination that “normal operations” have resumed?
   The announcement states that within three business days after you resume “normal operations,” the in-person document review must occur. But what if you implement a partial resumption of operations, scaled back operations, or even just start a test run of operations?  What if you call some of your employees in to your worksite in preparation for returning to normal operations? 
   
   The recommended approach is to determine if the employee is going to be required to physically come into the office as part of the resumption of operations, whether to attend orientation, pre-employment training, or other reason. If the employee is scheduled to come in to the workplace for only a day or two, or even for only a few hours, you should instruct them to bring their original I-9 document(s) with them, and you should conduct the in-person inspection at that time. 
   
   In short, rather than bank on an argument that Section 2 was not filled out late because “normal operations” had not yet commenced, you should err on the side of doing the document inspection as early in the process as possible (on a case-by case basis), rather than later.

10-Point Plan To Protect Your Business From Zoom-Bombs And Other Videoconferencing Privacy Concerns

The COVID-19 pandemic has caused many employers now operating remotely to conduct meetings via video conference – which has created a whole new set of various privacy and cybersecurity concerns. While these remote work tools have facilitated a more personal connection and interactive experience, their use is fraught with privacy concerns you may never have before considered. If your organization is weighing its options or unaware of the risks these services may create, this article provides a 10-point plan to protect your personal and confidential information and ensure you remain compliant with various federal and state privacy laws.  

The Risks of Video Conferencing       

Before diving into the blueprint for compliance, it is first helpful to understand the three main risks of video conferencing.

“Zoom-Bombing”

Since the start of the COVID-19 public health emergency, the FBI has noted a substantial increase in the number of businesses and schools reporting instances of video conference “hijackings” (also known as “Zoom-bombings”). During these hijackings — which generally occur where a video conference link is shared over social media or is not password-protected — uninvited participants have disrupted meetings by interjecting inappropriate language or displaying hateful or pornographic images into business meetings.

Aside from unwanted disruptions, uninvited interlopers pose a more serious threat. Those that choose to remain undetected could lead to the unauthorized disclosure of personal or confidential information.

Insufficient Or Non-Existent Encryption

Many video conferencing companies tout their services’ encryption capabilities. However, these claims should be closely scrutinized. By way of example, the video conferencing platform Zoom has indicated that hosts may “enable an end-to-end (E2E) encrypted meeting.” This was reportedly proven to be untrue. The company was supposedly able to access user data and video conferences in transit and it was reported that it could be compelled to provide access or information to the government if such a request was made.

Additionally, the storage of recorded video conferences creates other issues. Thousands of Zoom conference recordings were recently found on an unsecured online storage platform. Prior to Zoom restricting access to their storage location, anyone with an internet connection could access the private and confidential meetings of countless users. Likewise, if your business does not store its recorded conferences in a secure manner, there is a substantial possibility that an unauthorized individual may gain access to their contents.

Inadequate Privacy

Video conferencing raises privacy issues on two fronts. First, according to a recent California class action lawsuit, video conferencing providers may be improperly using their subscriber’s data. Specifically, as alleged in the suit, California’s privacy law and other state statutes may have been violated if users’ personal information was shared with Facebook without the users’ consent.

End-users may also create privacy issues. Among other things, confidential information may be mistakenly divulged if an employee shares their screen while such information is visible. If an end-user participates in a video conference in a public space, everything that is said and displayed during the conference is disclosed to those around them. Moreover, if an end-user records or takes screenshots of images displayed during the meeting, those items may be improperly disseminated.

Legal Consequences Of A Video Conferencing Breach

If you or your video conference provider has inadequate privacy and cybersecurity policies or procedures, your business may inadvertently run afoul of various federal and state laws. Among other laws, the unauthorized disclosure of your employees’ personal and confidential information may violate:

• The Health Insurance Portability and Accountability Act (HIPPA) (prohibiting the disclosure of sensitive patient health information without a patient’s knowledge or consent);
• California’s Consumer Privacy Act (CCPA) (regulating the access to, deletion of, and sharing of personal information collected by businesses); and
• The European Union’s General Data Protection Regulation (GDPR) (a wide-ranging law that governs how companies collect and manage data).

10-Point Plan To Prevent Video Conferencing Disasters

To avoid potential video conferencing related privacy or cybersecurity breaches when using Zoom or similar platforms, your business should consider employing the following practices:

1. Review your conference provider’s privacy policy and user agreement. Also ensure you have the most recent version of your video conference provider’s software before you launch a new meeting.
2. Ensure that your conferences are set as private, not public.
3. Require passwords for all meetings. And while this seems simplistic, do not post passwords (or meeting links) to social media.
4. If available, create a waiting room that allows the conference host to individually admit participants. Review all meeting attendees before starting the conference and remove uninvited participants who gain access to the meeting. Once all expected attendees have joined, lock the meeting.
5. Limit who may share their screen.
6. Disable cameras and/or mute non-presenting conference participants, and consider disabling private chat.
7. Prevent attendees from changing user names to conceal identities.
8. Ensure no confidential or personal information is visible before sharing your screen.
9. Instruct all participants to refrain from recording or screenshotting any information shared during the meeting.
10. Review (and if necessary, create or revise) your company telework and IT policies to ensure that employees are aware of the steps they must take to keep the personal and confidential information they possess secure.

Conclusion

In the wake of the COVID-19 pandemic, many employers are relying on video conferencing platforms to conduct meetings and providing remote educational instruction. While Zoom and other video conferencing platforms can provide a valuable interactive experience while social distancing, it is important to educate employees on potential privacy and cybersecurity risks. You must require them to adhere to best practices to ensure the security of remote meetings, protect the privacy of participants, and reduce the risk of intervention by unwanted participants.

Recording Available for AAG’s 2020 Education Seminar

The recorded presentation of AAG’s 2020 Educational Seminar on April 23, 2020 is now available for viewing.

Guest Speaker and attorney Keith Hammond, with Hammond Law Center, covered the impact of COVID-19 on businesses in relation to the Families First Coronavirus Response Act (FFCRA) as well as the Emergency Leave Act and CARES Act.

This seminar is also approved for 2 Professional Development Credits (PDCs) with SHRM for all attendees.

Please contact our office for the link to view the presentation or the Activity ID for the PDCs.

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.