COVID-19 – Page 8 – Administrators Advisory Group Inc.

Emergency Paid Leave Act Update

March 18 - Posted at 9:17 PM Tagged: Congress, Coronavirus, COVID-19, Emergency Paid Leave Act, paid leave

Emergency Paid Leave Act Update

Late this afternoon, the Senate passed its version of the paid leave bill that has been in the forefront of discussions this week. It does not appear that the text of the Senate’s version of the bill is available yet online, but we will make available a recap of its contents once it is available.

The President must still sign any bill passed by Congress BEFORE it will become law, although it is expected that the President could sign the bill as early as tonight and probably no later than tomorrow (Thursday) morning. Once he signs the bill, it will still be 15 days before it become effective.

Congress Makes Significant Changes to Proposed FMLA and Sick Leave Requirements in COVID-19 Bill

March 17 - Posted at 12:58 PM Tagged: Coronavirus, COVID-19, FLSA, FMLA

Congress Makes Significant Changes to Proposed FMLA and Sick Leave Requirements in COVID-19 Bill

On March 16, 2020, the U.S. House of Representatives unveiled legislation revisiting the sweeping COVID-19 response bill it passed only days earlier. While listed as “corrections” to the prior legislation, this new bill dramatically changes a number of provisions it had previously adopted.

It is stressed that this bill—like the prior iteration of H.R. 6201—is but one step in the process. The U.S. Senate is preparing to debate its own legislation responding to COVID-19. What the House and Senate ultimately pass separately must be reconciled before a single bill can be approved and sent to the president for his signature.

By way of brief background, the House originally approved sweeping legislation to address COVID-19, including several proposals relating to employer-mandated paid sick leave, as well as expansion of the federal Family and Medical Leave Act (FMLA). Specifically, that bill required private employers with 500 or fewer employees, and most public-sector employers, to provide extended “emergency” FMLA leave for a variety of COVID-19-related contingencies. It further adopted an emergency paid sick leave requirement for these same employers, while providing refundable tax credit relief for emergency FMLA and sick leave. Although the bill was adopted on a bipartisan basis, it immediately drew concern from many quarters, particularly small businesses facing a dramatic downturn in business relating to the current public health emergency, and the real-time economic impact these new requirements would have on these employers.

The new legislation released by the House generally narrows and targets these relief programs, and attempts to harmonize their interaction. This revised bill now provides as follows:

Emergency Family and Medical Leave Act

The revised bill provides that private-sector employers with fewer than 500 employees, and covered public-sector employers, must provide up to 12 weeks of job-protected FMLA leave for “a qualifying need related to a public health emergency” to employees who have been on the payroll for 30 calendar days. This “qualifying need” is limited to circumstances where an employee is unable to work (or telework) due to a need to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency. This is a dramatic scaling back from the prior iteration of the bill, which would have provided extended FMLA for a far broader range of COVID-19-related reasons.

As with the prior bill, the first segment days of emergency FMLA leave (which has been reduced from 14 days to 10 days in the revised bill) can be unpaid. An employee can opt to substitute accrued vacation, personal, or sick leave, but an employer may not require an employee to do so.

The remainder of FMLA leave is required to be paid, generally at two-thirds of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work. Unlike the prior bill, the revised bill limits the amount of required pay for leave to no more than $200 per day and $10,000 in the aggregate.

Emergency FMLA leave taken is generally job-protected, meaning the employer must restore employees to their prior positions (or an equivalent) upon the expiration of their need for leave. As in the prior version, the bill includes an exception to this requirement for employers with fewer than 25 employees, if the employee’s position no longer exists following leave due to operational changes occasioned by a public health emergency (e.g., a dramatic downturn in business caused by the COVID-19 pandemic), subject to certain conditions.

The revised bill retains language allowing the Secretary of Labor to exclude health care providers and emergency responders from the definition of employees who are allowed to take such leave, and to exempt small businesses (defined as those with fewer than 50 employees) if the required leave would jeopardize the viability of their business.

Further, the bill appears to exclude employers with fewer than 50 employees in a 75-mile radius from civil FMLA damages in an employee-initiated lawsuit. Finally, the bill expressly provides that employers may exclude employees who are health care providers or emergency responders from this emergency FMLA entitlement.

The bill would take effect 15 days after enactment, and sunset on December 31, 2020.

Emergency Paid Sick Leave

The bill requires private employers with fewer than 500 employees, and covered public employers, to provide paid sick time to an employee who is unable to work or telework because: (1) the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) the employee has been advised by a health care provider to self-quarantine because of COVID-19; (3) the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; (4) the employee is caring for an individual subject or advised to quarantine or isolation; (5) the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or (6) the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

An employer may exclude employees who are health care providers or emergency responders from this coverage. The bill also grants the Secretary of Labor the authority to issue regulations to: (a) exclude certain health care providers and emergency responders from the definition of employee by, among other things, allowing them to opt out; (b) exempt small businesses with fewer than 50 employees from these requirements if they jeopardize the viability of a business as a going concern; and (c) ensure consistency between the paid family and paid sick standards and tax credits.

In general, an employee is entitled to 80 hours of paid sick time (pro-rated for part-time employees). Unlike the 30-day payroll requirement, employees are immediately eligible for this leave.

The bill limits an employer’s requirement of paid leave to $511 per day ($5,110 in the aggregate) where leave is taken for reasons (1), (2), and (3) noted above (generally, an employee’s own illness or quarantine); and $200 per day ($2,000 in the aggregate) where leave is taken for reasons (4), (5), or (6) (care for others or school closures).

The bill includes a prohibition on retaliating against any employee who takes leave in accordance with the new law. The bill further provides that the failure to pay required sick leave will be treated as a failure to pay minimum wages in violation of the Fair Labor Standards Act.

The bill would become effective 15 days after its enactment, and sunset on December 31, 2020.

Tax Credits and Other Efforts

The bill includes refundable tax credits for employers that are required to offer Emergency FMLA or paid sick leave, including self-employed individuals. Note that these credits are only available to those employers that are required to offer these benefits under the new law, and these new credits are not generally extended to employers not subject to the new mandates under the bill.

In addition, the Department of Treasury is reported to be exploring means within its administrative powers to allow small businesses the liquidity and cash flow they need to maintain operations.

Finally, it seems likely that Congress will next turn its attention to broader economic relief measures. Many have suggested a reduction or suspension in the payroll tax. Others are calling for targeted relief for specific industries (travel, lodging, restaurants, retail), which have been rapidly and dramatically impacted by the pandemic.

Going Forward

The bill still leaves many questions unanswered. For example, the bill does not define “full time” employment. Similarly, it does not state explicitly how employers will be expected to calculate the number of their employees for purposes of the fewer-than-500 cap. Both the existing FMLA and FLSA include provisions relating to the aggregation of employees where there is common control or an integrated enterprise. Absent congressional change, it is likely courts and agencies will apply these tests for purposes of the emergency leave expansion thresholds.

More broadly, and as noted above, the landscape changes daily as Congress considers (and now, potentially reconsiders) legislative and policy responses to this unprecedented public health emergency.

House Passes COVID-19 Coronavirus Law: Prepare For Paid Sick Leave

March 16 - Posted at 10:22 AM Tagged: Coronavirus, COVID-19, Emergency FMLA, Families First Coronavirus Respose Act, FMLA, paid leave, unpaid leave

House Passes COVID-19 Coronavirus Law: Prepare For Paid Sick Leave

In an effort to boost the government’s response to the COVID-19 coronavirus outbreak, the U.S. House of Representatives passed the Families First Coronavirus Response Act yesterday, an economic stimulus plan aimed at addressing the impact of COVID-19 on Americans. It includes many provisions which apply to employers, such as paid sick leave for employees impacted by COVID-19 and those serving as caregivers for individuals with COVID-19.

The Act (H.R. 6201), which passed on a bipartisan 363-40 vote, will be presented to the Senate on Monday afternoon and is expected to pass the Senate with few revisions. President Trump has publicly supported the bill, and it will likely be signed into law late Monday, March 16, or Tuesday, March 17.

While the Act also contains several provisions to increase funding for familiar benefit programs, like WIC and SNAP, this post summarizes the key benefit provisions of the Act which affect employers. Please note the Act has not yet been finalized and the enacted law may vary from the below summary.

Paid And Unpaid Leave For Coronavirus-Related Reasons

There are three provisions relating to employees being forced to miss work because of the COVID-19 outbreak: an emergency expansion of the Family Medical Leave Act (FMLA), a new federal paid sick leave law, and expanded unemployment insurance benefits.

Emergency Family And Medical Leave Expansion Act

Expanded Coverage And Eligibility – The Act significantly aims to amend and expand the FMLA on a temporary basis. The current employee threshold for coverage would be changed from only covering employers with 50 or more to employers covering any workplace with fewer than 500 employees. It also lowers the eligibility requirement such that an employee who has worked for the employer for at least 30 days prior to the designated leave is eligible to receive paid family and medical leave. This means that thousands of employers not previously subject to the FMLA must provide job-protected leave to employees for a COVID-19 coronavirus-designated reason.

Reasons For Emergency Leave – Specifically, any individual employed by the employer for at least 30 days (before the first day of leave) may take up to 12 weeks of paid, job-protected leave to allow the employee to (1) comply with a requirement or recommendation to quarantine due to exposure to, or symptoms of, coronavirus; (2) to care for an at-risk family member who is adhering to requirement or recommendation to quarantine due to exposure to, or symptoms of, coronavirus; or to (3) to care for the employee’s child if the child’s school or place of care (including if the childcare provider is unavailable) has been closed due to a public emergency.

Paid Leave – The first 14 days of Emergency FMLA may be unpaid, but an employee may elect to substitute any accrued paid time off, including vacation or sick leave, to cover some or all of the 14-day unpaid period. After the 14-day period, the employer must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work. Employers with bargaining unit employees would apply the Emergency FMLA provisions consistent with the bargaining agreement.

Expanded Definitions – The Act also expands the definition of who is eligible as a “parent’ under FMLA, which includes a parent-in-law of the employee, a parent of a domestic partner of the employee, and a legal guardian or other person who served as the employee’s parent (also know as in loco parentis) when the employee was a child.

Small Business And Other Exemptions – The bill also gives the Secretary of Labor the authority to issue regulations to exempt some small business with fewer than 50 employees (when the imposition of such requirements would jeopardize the viability of the business as a going concern), and to exclude certain healthcare providers and emergency responders from the list of those employees eligible for leave.

Effective Date And Expiration – This program will become effective within 15 days of enactment and remain in effect until December 31, 2020.

Emergency Paid Sick Leave Act

This provision requires employers with fewer than 500 employees to provide employees (regardless of the employee’s duration of employment prior to leave) with 80 hours of paid sick leave at the employee’s regular rate (or two-thirds the employee’s regular rate to care for a child whose school or daycare has closed due to coronavirus, or to care for a family member who is self-isolating due to a coronavirus diagnosis, who is exhibiting symptoms and needs to obtain medical care, or who is complying with a requirement or recommendation to quarantine).

Reasons For Paid Sick Leave – This portion of the new law would allow the employee to (1) comply with a requirement or recommendation to quarantine due to exposure to, or symptoms of, coronavirus; (2) self-isolate because the employee is diagnosed with coronavirus; (3) obtain a diagnosis or care because the employee is exhibiting symptoms; (4) to care for or assist an at-risk family member who is self-isolating due to a diagnosis, who is exhibiting symptoms of coronavirus and needs to obtain medical care, or who is adhering to requirement or recommendation to quarantine due to a exposure to, or symptoms of, coronavirus; or (5) to take care of the employee’s child if the child’s school or place of care has been closed due to the COVID-19 coronavirus (including if the childcare provider is unavailable).

Carryover – This paid sick leave will not carry over to the following year and is in addition to any paid sick leave currently provided by employers.

Calculating Rate Of Pay – Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking paid sick leave. Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work. A business employing fewer than 500 employees is required, at the request of the employee, to pay the employee for 14 days of mandated emergency paid leave instead of the initial 14 days of unpaid leave required by the Emergency Family and Medical Leave Expansion Act (summarized above).

An employer may not change its current paid leave policy after enactment to avoid the obligations of the additional leave mandated by the Emergency Paid Sick Leave Act. This program will be administered by the Social Security Administration over the next year until these requirements expire on December 31, 2020.

Emergency Unemployment Insurance Stabilization And Access Act Of 2020

This section provides $1 billion in 2020 for emergency grants to states for activities related to unemployment insurance benefit processing and payment, under certain conditions.

Half of the resources are to be allocated to provide immediate funding to all states for administrative costs so long as they meet some basic requirements, including: (1) requiring employers to provide notification of the availability of unemployment compensation at the time of separation; (2) ensuring applications for unemployment compensation and assistance with the application process are accessible in at least two ways (in-person, by phone, or online); and (3) notifying applicants when their application is received and being processed, as well as providing information about how to ensure successful processing if the application cannot be processed.

The other half would be reserved for emergency grants to states which experience an increase of unemployment compensation claims of at least 10% in comparison to the same quarter in the prior calendar year. Those states would be eligible to receive an additional grant to assist with costs related to such an unemployment spike if they meet additional requirements, including: (1) expressing of commitment to maintain and strengthen access to unemployment compensation; and (2) taking or planning to take steps to ease eligibility requirements and access (like waiving work search requirements and the waiting period). This provision will remain in effect until December 31, 2020.

Tax Credits For Paid Sick And Paid Family And Medical Leave

This section provides a series of refundable tax credits for employers who are required to provide the Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave described above. These tax credits are allowed against the tax imposed by Internal Revenue Code Section 3111(a), which deals with the employer portion of Social Security taxes. While this limits application of the tax credit, employers will be reimbursed if their costs for qualified sick leave or qualified family leave wages exceed the taxes they would owe.

Specifically, employers are entitled to a refundable tax credit equal to 100% of the qualified sick leave wages paid by employers for each calendar quarter in adherence with the Emergency Paid Sick Leave Act. The qualified sick leave wages are capped at $511 per day ($200 per day if the leave is for caring for a family member or child) for up to 10 days per employee in each calendar quarter.

Similarly, employers are entitled to a refundable tax credit equal to 100% of the qualified family leave wages paid by employers for each calendar quarter in accordance with the Emergency Family and Medical Leave Expansion Act. The qualified family leave wages are capped at $200 per day for each individual up to $10,000 total per calendar quarter.

Coverage For Testing For COVID-19

This section requires private health plans to provide coverage for COVID-19 diagnostic testing, including the cost of a provider, urgent care center and emergency room visits in order to receive testing. Coverage must be provided at no cost to the employee and any others covered under the employee’s health plan.

Next Steps

As mentioned above, the Senate is expected to pass the legislation on Monday, and the President is expected to sign it shortly thereafter. There may be changes made by the Senate before the legislation is finalized, and there may be follow-up “clean-up” legislation. In addition, many states are proposing similar emergency legislation to enact or expand their own paid sick leave or family and medical leave laws to cover coronavirus-related issues. Some of these state laws may be in addition to any new requirements at the federal level.

We will continue to monitor this rapidly developing situation and provide updates as appropriate.

Guidance Published for Employers on Responding to the 2019 Novel Coronavirus

February 24 - Posted at 8:45 AM Tagged: Cal/OSHA, Coronavirus; CDC, COVID-19, OSHA, Risk Assessment

Guidance Published for Employers on Responding to the 2019 Novel Coronavirus

There are now more than 46,000 confirmed cases across the globe, with the vast majority in mainland China, and 15 confirmed cases in the U.S. Many details about the virus are unknown, including its severity and how it spreads, leaving employers with many questions about how to appropriately respond.

New guidance is available for employers from the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and California’s Division of Occupational Safety and Health (Cal/OSHA).

CDC Guidance for Non-Healthcare Employers

On February 7, 2020, the CDC published Interim Guidance for Businesses and Employers to Plan and Respond to 2019 Novel Coronavirus (2019-nCoV), providing important information for non-healthcare employers to help prevent workplace exposures to COVID-19.

The CDC provides detailed steps for employers to take now. The CDC’s recommendations fall under six main areas:

1. Actively encourage sick employees to stay home. Employees with symptoms of acute respiratory illness should stay home and not come to work until they are fever-free and free from symptoms for at least 24 hours. The CDC encourages employers not to require employees who have an acute respiratory illness to present a doctor’s note to validate their illness or to return to work because the medical facilities may be overwhelmed. Although not legally required, employers should carefully consider whether this approach is appropriate in their workplaces.

2. Separate sick employees. Employees who appear to have acute respiratory illness symptoms (i.e., cough or shortness of breath) should be separated from other employees and sent home immediately.

3. Emphasize staying home when sick, respiratory etiquette, and hand hygiene by all employees. The CDC provides links to posters that encourage employees to stay home when sick, cough and sneeze etiquette, and hand hygiene and recommends that employers put posters at the entrance to the workplace and in other work areas. The CDC also encourages employers to provide tissues, no-touch receptacles, hand sanitizer, and instructions on handwashing and use of hand sanitizer.

4. Perform routine environmental cleaning. The CDC recommends routine cleaning of all frequently touched surfaces and that employers provide disposable wipes so that commonly used surfaces, such as doorknobs, can be wiped down by employees before each use. The CDC does not recommend any particular cleaning product or additional disinfection beyond routine cleaning at this time.

5. Advise employees to take certain steps before traveling. Everyone should check the CDC’s Traveler’s Health Notices for each country before traveling and not travel if they have symptoms of acute respiratory illness. Employers also should make sure that employees know what to do and who to contact if they become sick while traveling.

6. Additional Measures. The CDC recommends that employees who have a sick family member at home with COVID-19 “should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.”

CDC’s Risk Assessment for Exposure in Travel or Community Settings

The CDC has published an extensive guidance for conducting a risk assessment and provides associated recommendations in its Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential 2019 Novel Coronavirus (2019-nCoV) Exposure in Travel-associated or Community Settings.

Employers who are concerned that an employee may have been exposed to the virus should consult the CDC’s risk assessment. This guidance addresses various potential exposure scenarios and identifies four exposure risk categories: (1) High Risk; (2) Medium Risk; (3) Low Risk; and (4) No Identifiable Risk. Based on these exposure risk categories, the CDC provides recommendations for exposure risk management, including appropriate restrictions on public activities (including workplaces), medical evaluation, and travel restrictions depending on whether the individual has symptoms of COVID-19. The CDC has provided separate guidance for healthcare settings.

Employees who live in the same household as someone with confirmed COVID-19, for example, may fall under “High Risk” or “Medium Risk,” depending on the circumstances. Individuals who are “High Risk” but have no symptoms should be quarantined (voluntary or under public health orders) for 14 days. For employees who fall under the “Medium Risk” category, as long as they have no symptoms, the CDC generally recommends that they avoid areas where people congregate, which includes workplaces, for 14 days. However, the CDC says that employers may consider, case-by-case and in consultation with public health officials, whether these individuals may come to work without entering crowded locations. These complex decisions must be considered carefully in the context of the workplace and multiple layers of legal and other considerations.

If an employee is confirmed to have the COVID-19 infection, the CDC recommends that employers inform coworkers of potential exposure. Knowledge about potential exposure is certainly important, but employers should consider legal issues including confidentiality requirements under the Americans with Disabilities Act and state law.

Until now, most employers have been appropriately focused on limiting potential exposure from individuals who had recently traveled to Hubei or other areas in mainland China. If this outbreak continues to grow across the U.S. or in certain geographic areas, employers will be forced to manage the risk of employees potentially bringing the virus to work as a result of exposures at home or otherwise in their own communities. Employers should develop strategies now that are appropriate for their workplaces, including communications to employees.

Planning for Possible Outbreak in the U.S.

In its Guidance for Businesses and Employers, the CDC also recommends that all employers plan for a potential outbreak of COVID-19 in the U.S. and be prepared to implement strategies to protect their workforce while ensuring continuity of operations. Planning for a potential outbreak includes identifying and communicating objectives, such as “(a) reducing transmission among staff, (b) protecting people who are at higher risk for adverse health complications, (c) maintaining business operations, and (d) minimizing adverse effects on other entities in their supply chains.” Among other things, the CDC recommends that employers now consider whether, when faced with an outbreak of the illness, they could have employees telecommute or stagger shifts to create physical distance among employees and whether they have the infrastructure to support those efforts. The CDC also recommends that employers consider plans to minimize exposure between employees and the public (if public officials call for social distancing) and prepare for increased absenteeism.

All employers should review the CDC’s complete Guidance for Businesses and Employers. The CDC’s guidance is not a legal mandate for employers. OSHA and many state laws, however, impose a general duty on all employers to provide workers with work environments free from recognized hazards. Federal and state mandatory requirements may apply, particularly in higher risk industries, to prevent occupational exposure to COVID-19.

OSHA Provides Guidance for All Employers and Specific Guidance for Certain Industries

OSHA has published detailed information on hazard recognition, medical information, potentially applicable OSHA standards, control and prevention, as well as additional resources and information about workers’ rights. As OSHA explains, without sustained human-to-human transmission, most U.S. workers remain at low risk of exposure and infection. However, OSHA identifies important but common sense practices for all workers and employers to help prevent worker exposure to COVID-19: proper handwashing including the use of alcohol-based rub (hand sanitizer), avoid touching eyes, nose, or mouth with unwashed hands, and avoid close contact with sick people.

Certain groups of workers, especially those in healthcare, are at a higher risk for potential exposure and employers and workers must take additional precautions. OSHA provides additional guidance for groups of workers with increased risk of exposure, including:

The CDC also has published guidance for healthcare professionals and laboratories.

Employers with Workers in California Should Review New Cal/OSHA Guidelines

Cal/OSHA also issued guidance on requirements to protect healthcare workers from COVID-19. The guidance covers the safety requirements when providing care for suspected or confirmed patients of the respiratory disease or when handling pathogens in laboratory settings. COVID-19 is an airborne infectious disease covered by Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard, which requires employers to protect workers from diseases and pathogens transmitted by aerosols and droplets. The ATD standard applies in healthcare facilities, laboratories, public health services, police services, and other locations where employees are reasonably anticipated to be exposed to confirmed or suspected cases of aerosol transmissible diseases. The ATD standard requires employers to have an ATD Exposure Control Plan that includes procedures to identify COVID-19 cases, provision of appropriate personal protective equipment, among other things. Employers also must provide training for their employees covering many items related to COVID-19, such as the signs and symptoms, modes of transmission, methods to prevent exposure, and personal protective equipment.

Employers should continue to monitor information coming from state and local health departments and promptly report any suspected cases of COVID-19 to the local health department. Healthcare employers should consult guidance from OSHA, the CDC, and other relevant agencies. This is a rapidly evolving situation and all information in this update is subject to change. For the latest information, please review the relevant agency communications.

Article Courtesy of Jackson Lewis