Firing an employee for being gay (i.e. sexual orientation) or transgender (i.e. gender identity) is a violation of Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court said in a ruling issued June 15, 2020.

The Decision

The decision, which marks an important shift for employers, was highly anticipated and came as a result of a split among federal courts on the issue. Specifically, it addresses the question of how far Title VII’s prohibition on discrimination “because of sex” extends.

In the majority opinion, Justice Neil Gorsuch wrote, “An employer who fires an individual merely for being gay or transgender defies the law.” The court’s ruling came on a 6-3 vote.

The decision stems from cases in which gay employees alleged they were fired because of their sexual orientation and a transgender employee alleged she was fired based on her gender identity. It confirms that LGBTQ employees’ discrimination claims should be treated the same as Title VII’s other explicit prohibition against employment-related decisions based on, for example, an individual’s race, religion, national origin or sex. To read more about the previous circuit split on this issue, please see our previous blog post.

Highlighting the Rights of Individuals

The majority opinion highlights the rights of an individual, rather than groups, noting that Title VII “works to protect individuals of both sexes from discrimination, and does so equally” and provides the following example:

So, an employer who fires a woman, Hannah, be­cause she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. In­stead of avoiding Title VII exposure, this employer doubles it.

Intersection with Free Exercise of Religion

The majority decision also opined that the protection of the free exercise of religion under the First Amendment and the Religious Freedom and Restoration Act (RFRA), 42 U.S.C. §2000bb et seq. may override the protections provided by Title VII in certain cases. Specifically, Judge Gorsuch wrote:

We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e-1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom and Restoration Act of 1993 (RFRA…That statute prohibits the federal government from substantially burdening person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb-1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.

Judge Gorsuch concluded by noting, “how these doctrines protecting religious liberties interact with Title VII are questions for future cases too…none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.”

Key Takeaways for Employers

In light of this ruling, most employers will want to consider reviewing their anti-discrimination policies in their employee handbooks to determine if updates are necessary.

Employers should also provide training for management and employees regarding their anti-discrimination and anti-harassment policies.

Several state and local jurisdictions (e.g. Illinois, under the Illinois Human Rights Act) had already provided protection against discrimination and harassment based on an employee’s sexual orientation, but state or local EEO laws in many other jurisdictions have not have previously addressed these issues.

If you have questions about how the Supreme Court’s recent ruling applies to your organization, please contact an attorney in our Employment & Labor practice group.

The Chicago Fair Workweek Ordinance goes into effect on July 1, 2020, and has the potential to cause headaches for some organizations that have employees working in Chicago. Here’s a look at what employers in seven key industries – building services, health care, hotels, manufacturing, restaurants, retail, and warehouse services – need to know about the ordinance.

Are all employers that are located in Chicago or have employees working in Chicago subject to the ordinance?

No. Only those in the industries mentioned above that meet the definition of a “covered employer” are subject to its provisions. The ordinance defines a “covered employer” as an employer that employs 100 or more employees at all its locations, including outside of Chicago. However, even if an employer employs 100 or more employees, for it to be a covered employer under the ordinance, at least 50 of whom must be “covered employees.” The ordinance defines a “covered employee” as an employee who spends a majority of his/her time working in Chicago and, if salaried, earns less than or equal to $50,000, or if hourly, earns less than or equal to $26 per hour.

Many businesses contract with temporary or day staffing agencies for workers. After July 1, 2020, if that worker performs services for a covered employer for 420 hours within an 18-month period, the ordinance applies to that worker. Independent contractors are exempt and are not afforded rights under the ordinance.

How much advance notice of schedules is required?

Beginning July 1, 2020, prior to or on a covered employee’s first day of employment, the employee must be provided with a good-faith estimate in writing of his/her work schedule for the first 90 days of employment. This good-faith estimate does not create an employment contract or alter the individual’s at-will employment status, however.

Beginning July 1, 2020, through June 30, 2022, covered employers must provide covered employees with written notice of their work schedule no later than 10 days before the first day of any new schedule. Beginning July 1, 2022, the 10-day notice period increases to 14 days prior to the beginning of any new schedule.

Importantly, under the ordinance a covered employee has the right to decline any previously unscheduled hours that covered employers attempt to add to the employee’s work schedule with less than 10 days’ notice of any new work schedule, and they may do so with complete immunity from discipline.

Under these circumstances, covered employers need to be mindful not to retaliate (unintentionally, hopefully) against a covered employee who exercises his or her right to decline any unscheduled hours added without proper notice. Courts in Illinois recognize as retaliation any conduct that may discourage an employee from exercising his/her protected rights. For example, a covered employer tells a covered employee that if he declines the request to work, he will no longer be eligible for overtime, so the employee reluctantly agrees. While the employee did not suffer any immediate or tangible adverse action, the employer’s words potentially have a chilling effect on the employee in the future, as he may believe that he cannot decline a request to work unscheduled hours, or risk never being asked to work overtime.

What are the penalties for schedule changes?

If a covered employer “alters” a covered employee’s work schedule with less than the required 10-day written notice, the employer must provide the employee with one hour of “predictability pay” at the employee’s regular rate of pay. The ordinance defines “alter” as (1) adding hours of work; (2) changing the date or time of the work shift with no loss of hours; or (3) with more than 24 hours’ notice, canceling or subtracting hours from a regular or on-call shift.

Separately, if the covered employer cancels or reduces a covered employee’s hours with less than 24 hours’ notice from the impacted shift, the employer must pay the employee one-half his/her regular rate of pay per hour for any hours not worked as a result of the change in schedule.

Any changes to a covered employee’s work schedule after the work schedule has been posted must be reposted within 24 hours of the change.

The ordinance also protects a covered employee from working consecutive shifts that are less than 10 hours after the end of the employee’s previous day’s shift. In this situation, the employee has the right to decline to work that shift. If, however, the employee agrees to work, covered employers must pay the employee 1.25 times his/her regular rate of pay for all such hours worked. And, for any hours in the shift that constitute overtime hours, those hours must paid at 1.5 times the employee’s base rate of pay.

Are there any exceptions to the predictability pay requirement for a schedule change?

Fortunately, there are several. First, no penalty is assessed if the total change to the work schedule does not exceed 15 minutes. Nor is a covered employer penalized if the covered employee clocks in early or out late, thereby unilaterally altering his work schedule. The ordinance provides a litany of other exceptions, including:

  • Specifically, for manufacturers, if an event outside of their control occurs resulting in the work schedule change, for example, a customer requests a delay in production, or there is a delay in raw materials or other parts are needed for production;
  • Threats to covered employers, covered employees, or property, or when civil authorities recommend that work not begin or continue;
  • Public utilities fail to supply water, electricity, or gas; or the sewer system fails to serve the location of the work;
  • Acts of nature that prevent operations from continuing;
  • War, civil unrest or strikes, threats to public safety, or a pandemic;
  • The schedule change is the result of a mutually agreed-upon shift trade or coverage arrangement between covered employees;
  • The covered employer and covered employee mutually agree to a proposed schedule change, it is confirmed in writing, and it is time- and date-stamped;
  • The covered employee requests the shift change because the employee is sick or taking vacation, and it is confirmed in writing. In this situation, however, the covered employee whom the covered employer asks to work unscheduled hours because an employee called off sick or is otherwise using paid time off is entitled to predictability pay unless the employee mutually agrees in writing to the schedule change. And, covered employees are not required to find a substitute if they cannot work a scheduled shift;
  • A covered employer subtracts hours due to disciplinary reasons, and documents the incident leading to the discipline.

Significantly, the ordinance was amended to state that scheduling changes made because of the COVID-19 pandemic do not have to follow procedures outlined in the ordinance. However, covered employers should be cautious about relying on this exemption, which only applies when the pandemic has caused an employer to “materially change its operating hours, operating plan, or the goods or services provided by the employer, which results in the work schedule change.” This exemption will continue until Mayor Lightfoot’s pandemic Emergency Executive Order is withdrawn.

How are collective bargaining agreements affected?

No changes need to be made to collective bargaining agreements in effect prior to July 1, 2020. However, the ordinance does apply to covered employers subject to collective bargaining agreements that take effect after July 1, 2020, unless the agreement includes a clear and unambiguous waiver of the ordinance’s requirements.

Are there any notice, posting or record retention requirements?

The ordinance requires covered employers to post a notice advising employees of their rights in a conspicuous place in each facility where any covered employee works that is within the geographic boundaries of the city. Covered employers also must provide this same notice with all covered employees’ first paychecks after July 1, 2020, and each July 1 thereafter. The notices must be provided in any language spoken by a covered employee, but only if a notice in that language has been made available from the Department of Business Affairs and Consumer Protection (BACP).

The ordinance also requires covered employers to keep for at least three years, or the duration of any claim filed with the BACP, lawsuit, or investigation, whichever is longer, records that include the employee’s name, hours worked, pay rate, and all other records necessary to maintain compliance with the ordinance.

Can employers by sued for non-compliance, and what are the penalties?

Covered employees may file a complaint with the Office of Labor Standards, BACP. However, covered employees will not be allowed to file a complaint for violations of the ordinance occurring before January 1, 2021. Employers who violate the ordinance are subject to a fine of not less than $300, and not more than $500 for each offense. Each covered employee whose rights have been violated constitutes a separate and distinct offense. And, each day that a violation has occurred constitutes a separate and distinct offense and is subject to a separate fine. Finally, if a covered employer retaliates against a covered employee for exercising his/her rights under the ordinance, it will be subject to a $1,000 fine.

The U.S. Department of Labor has issued revised enforcement guidance addressing when an employee’s COVID-19 diagnosis is a recordable illness on the OSHA Form 300 under OSHA’s recordkeeping requirements. (See Revised Enforcement Guidance for Recording Cases of Coronavirus Disease (COVID-19), May 19, 2020.) Effective May 26, 2020, all covered employers[1] are responsible for recording cases of COVID-19 if it the case is confirmed to be COVID-19, is work-related, and involves one or more of OSHA’s general recording criteria (e.g. the illness results in the employee’s death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness, or the employee has a significant illness diagnosed by a licensed health care professional).

This revised enforcement guidance effectively rescinds the DOL’s earlier guidance on the topic issued on April 10, 2020, which limited the obligation to determine whether a COVID-19 illness was work-related and an OSHA recordable illness only to employers in the health care industry, emergency response organizations, and correctional institutions and encouraged all other employers to focus their efforts on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects.

The factors the DOL considered in expanding the recording requirement are:

  • Incidence: Confirmed COVID-19 cases have been found nearly everywhere in the country and in many industries other than health care, emergency response and correctional institutions.
  • Adaptation: Employers have taken swift and evolving steps to slow the spread of the coronavirus, protect employees, and adapt to new ways of doing business.
  • Return of the workforce: States are beginning to reopen their economies, and employees are returning to their workplaces.

Therefore, the DOL reasoned that all covered employers should now be taking action to determine whether their employees who contract COVID-19 likely did so in the workplace and, if so, to record such cases.

The revised enforcement guidance provides OSHA Compliance Safety and Health Officers (the inspectors) with considerations to apply when determining whether an employer has complied with the obligation to determine whether an employee’s COVID-19 illness is work-related and has made a reasonable determination of work relatedness. Noting that there is “no ready formula,” the DOL states that certain types of evidence may weigh in favor of a determination that an employee contracted COVID-19 at work, and certain evidence may weigh against a determination that an employee contracted COVID-19 at work.

For example, according to the guidance, COVID-19 illnesses are likely work-related:

  • when several cases develop among employees who work closely together, OR
  • if COVID-19 is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19, OR
  • if the infected employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission, AND
  • there is no alternative explanation.

On the other hand, COVID-19 illnesses are likely not work-related:

  • if the infected employee is the only worker to contract COVID-19 in the vicinity of her workplace and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread, OR
  • if outside the workplace, the infected employee closely and frequently associates with someone who has COVID-19, is not a coworker, and exposes the employee during the period in which that person was likely infectious.

One obvious and important missing factor that may lead to incorrect determinations by employers about work-relatedness is that some individuals who have COVID-19 are asymptomatic and do not know they are infected. It is impossible for an employer to consider those individuals – whether they are coworkers or family members of a diagnosed employee – in the employer’s assessment. Regardless, the guidance states that if, after conducting a reasonable and good-faith inquiry, “the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”

Unfortunately, this fact-specific analysis will be time-consuming for employers. It is very important for employers to document the steps they took, information gathered, and factors relied upon in reaching the decision, particularly when the finding is that a COVID-19 case is not work-related.

Our Employment & Labor Practice Group attorneys are continuously monitoring developments and are available to answer your questions regarding these high-level updates as well as specific situations that your business may encounter related to COVID-19.

[1] Note that pursuant to existing OSHA regulations, employers with 10 or fewer employees at all times during the previous calendar year (2019) and employers in designated low hazard industries generally do not need to keep OSHA injury and illness records unless the injury or illness results in a fatality, inpatient hospitalization, an amputation, or loss of an eye.  To see OSHA’s low hazard industry list, click here: https://www.osha.gov/recordkeeping/ppt1/RK1exempttable.html 

Link to COVID-19 Resources page

Phase I of reopening St. Louis City and St. Louis County began May 18. Both St. Louis City and County have general and business-specific operating standards for certain businesses to reopen or continue operating, while others will remain closed for now. St. Louis City Order No. 8 and Phase I Reopening Standards and Guidance Established by Order No. 8 are available here. St. Louis County’s COVID-19 Safe Operating Protocols are available here.

The city and county’s guidelines parallel one another in most respects. Among other requirements, both require the following of businesses:

  • Social distancing: Maintaining a distance of 6 feet between employees and consumers;
  • Employee education: Including on procedures related to social distancing requirements;
  • Posting signage: Regarding face coverings, hygiene and social distancing;
  • Encouraging telework (where feasible);
  • Use of face coverings/face masks: Providing face masks or supplies to make face masks to all employees and volunteers working on the premises, requiring employees and volunteers to wear masks at work unless working alone or outside and maintaining social distancing, and wearing gloves when appropriate.
  • Handwashing: Providing reasonable breaks for employees for handwashing or sanitizing throughout the day;
  • Disinfection: Cleaning per CDC guidelines, providing material and education on the proper cleaning procedures and requiring employees to routinely disinfect all frequently touched surfaces by customers or employees; and
  • Employee screening: Establishing daily protocols to evaluate employees’ symptoms and temperature and allowing employees to quarantine.

Retail establishments must also comply with capacity restrictions set by the state, city and county. The city’s guidelines include a sample Employee Health Screening Form.

In addition to the general standards, St. Louis City and County also provided business-specific operating standards for business offices, commercial office buildings, hotels and commercial lodging, manufacturing, construction and repair, retail services and malls, restaurants and bars, personal services and transportation.

This post is intended to be a quick synopsis of top takeaways for employers. Employers should note that the St. Louis City and County general and business-specific operating standards do not supersede public health orders, laws or regulations that apply to your business and jurisdiction.

If you have questions about St. Louis City or St. Louis County’s reopening guidelines or need more guidance as employees come back to the workplace, our Employment & Labor Practice Group attorneys are here to help and have recently recorded a Return to Work webinar.

Link to COVID-19 Resources page

With its latest Q&A set, the U.S. Department of Labor issued additional guidance on calculating paid leave and computing employees’ regular rate of compensation, and it also clarified issues arising from prior Q&As. It is a particularly good time to review the guidance, as the DOL announced the end of its non-enforcement period of the paid leave provisions under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA).

The DOL’s Q&As can be found here in their entirety. Highlights from the fifth set include:

Calculating the number of hours of emergency paid sick leave available to employees with irregular hours (DOL Q&A #80). When it is impossible to determine the hours an employee would normally work over a two-week period, employers must make an estimate. To estimate the number of hours the employee would normally work, employers should:

  1. Determine the applicable six-month period. This six-month period ends on the first day of paid sick leave.
  2. Determine the total calendar days during the applicable six-month period.
  3. Determine the total scheduled hours worked – including hours worked and hours on leave.
  4. Calculate the average number of hours the employee was scheduled to work per calendar day. Divide the total scheduled hours by the total calendar days during the applicable six-month period.
  5. Calculate the number of hours of paid sick leave. Multiply the average hours the employee was scheduled to work per calendar day by 14.
  • Example: Irregular hour employee takes leave beginning on April 13, 2020. The six-month period used for estimating average hours begins on Oct. 14, 2019, and ends on April 13, 2020 – a total of 183 calendar days. During this period, the employee worked 1,150 hours and took 50 hours of leave – a total of 1,200 scheduled hours. To calculate the number of hours per calendar day, divide 1,200 hours by 183 calendar days, which averages out to 6.557 hours per calendar day. To calculate the two-week average, multiply the per-calendar-day average by 14, which is 91.8 hours. Since employers are required to only provide a maximum of 80 hours of paid sick leave over the two-week period, the employee is entitled to 80 hours of paid sick leave.
  • NOTE: For each hour of paid sick leave taken, you are required to pay the employee an amount equal to at least that employee’s regular rate.

Calculating the number of hours to pay employees with irregular hours for each day of expanded family and medical leave (DOL Q&A #81). Expanded family and medical leave benefits for employees with irregular hours and employed for at least six months must be calculated based on the average workday hours. To calculate, employers should:

  1. Determine the applicable six-month period. The six-month period must end on the first day of paid sick leave.
  2. Determine the total workdays during the applicable six-month period.
  3. Determine the total scheduled hours worked, including hours worked and hours on leave.
  4. Calculate the average number of hours per workday. Divide the total scheduled hours by the total workdays during the applicable six-month period.
  • Example: Irregular hour employee takes leave beginning on April 13, 2020. The six-month period used for estimating average hours is from Oct. 14, 2019, to April 13, 2020 – a total of 183 calendar days. Of the 183 calendar days, the employee worked 1,150 hours over 130 workdays and took 50 hours of leave – a total of 1,200 scheduled hours. To calculate the number of hours per workday, the employer would divide 1,200 hours by 130 workdays, which averages out to 9.2 hours per workday. 9.2 hours is the number of hours to pay this employee for each day of expanded family and medical leave.
  • NOTE: To calculate the amount to pay an employee with irregular hours for each day of expanded family and medical leave taken, multiply the average hours per workday as calculated above by 2/3 the employee’s regular rate. Remember there is a $200-per-day cap and a $10,000 maximum.

Be consistent when rounding to calculate the number of hours (DOL Q&A #84). Employers can continue their regular rounding practice when calculating the number of hours of paid sick leave or the number of hours to pay employees with irregular schedules for each day of expanded family and medical leave taken. The key is to be consistent both in the hourly increment customarily used and when applying the rounding practice to employees.

  • Example: After calculating the number of hours of paid sick leave to 91.803 hours, employers tracking time in half-hour increments would round to 92 hours. Employers tracking time in quarter-hour increments would round to 91.75 hours. Employers tracking time in tenth-hour increments would round to 91.8 hours.

Calculating employees’ average regular rate for the purpose of the Families First Coronavirus Response Act (FFCRA) (DOL Q&As #82-83, 85). Under the FFCRA, employers must pay employees based on their average regular rate for each hour of paid sick leave or expanded family and medical leave taken. For employees on a fixed hourly wage, the regular rate is the hourly wage or the hourly-equivalent of the salary. For employees receiving piece-rate, commissions or tips, the regular rate may fluctuate week to week. To calculate the regular rate for employees with fluctuating income, employers should:

  1. Determine the applicable six-month period. The six-month period must end on the first day of paid sick leave.
  2. Determine the total full workweeks in that period. The DOL assumes in their example a Monday to Sunday workweek.
  3. Total the number of hours worked, not including leave hours.
  4. Total the amount received in non-excludable remuneration for each full workweek during the six-month period.
  • NOTE: Commissions and piece-rate pay count, but tips only count to the extent employers apply them toward minimum wage obligations. Also, payments for taking leave should not count toward this calculation.

    5.  Determine the average regular rate by dividing the non-excludable remuneration (#4 above) by the total number of hours worked (#3 above).

  • NOTE: Calculating the average regular rate of employees paid on a fixed salary depends on whether the employee is compensated for a specific number of hours during each workweek or the fixed salary compensates the employee regardless of the number of hours during each workweek. The former would simply be the hourly equivalent of the salary, but the latter involves adding up the salary paid over all full workweeks in the past six months and dividing the sum by the total number of hours worked in the workweeks. Employers can use a reasonable estimate if they lack records for the number of hours the employee worked.
  • NOTE: Employers only need to identify the six-month period once when calculating the regular rate under the FFCRA. Instead of determining and reviewing a new six-month period every time an employee takes leave, the six-month period is based on the first day the employee takes paid sick leave or expanded family and medical leave. For workers with less than six months of employment, employers may calculate the regular rate over the entire period of employment.

Clarification on when employers may require employees to use their existing paid leave under company policy for paid expanded family medical leave and paid sick leave (DOL Q&A #86). Employers may not require paid leave under company policy (e.g. PTO or paid vacation) to run concurrently with paid sick leave under the EPSLA. However, employers may require that any paid leave provided under company policy run concurrently with paid expanded family and medical leave. To do this, an employer must pay the employee’s full pay during the leave until the employee has exhausted available paid leave under the company policy. Employers are only eligible for tax credits for wages paid at two-thirds of employees’ regular rate of pay (up to $200 per day and $10,000 total). Employees who exhaust available paid leave under the company policy will still receive any remaining paid expanded and medical family available subject to the limits in the EFMLA.

Employees are not required, but may elect, to take paid sick leave under the EPSLA or paid leave under a company policy for the first two weeks of unpaid expanded family and medical leave, but not both. However, employees with partial or no paid sick leave available under the EPSLA may choose to use paid leave under the company policy to cover the portion of the employee’s first two unpaid weeks of expanded family and medical leave.

Clarification on eligibility for paid sick leave when prevented from working in response to stay-at-home, shelter-in-place, quarantine or isolation orders (DOL Q&A #87). Previously, in DOL Q&A #60, the department explained employees may be entitled to paid sick leave if they are prevented from performing work (including telework) by one of the above orders. However, employees are not entitled to paid sick leave if their employers close or do not have work available due to a shelter-in-place order. DOL’s Q&A #87 further notes that employees are not entitled to paid sick leave if employers do not have work available due to a quarantine or isolation order or for other reasons.

  • Example: An employee may take paid leave under the FFCRA when he or she is prohibited from leaving a containment zone and the employer is outside the zone, open and the work available can only be done at the employee’s place of business (no telework).
  • Example: An employee is not entitled to paid leave under the FFCRA and should seek unemployment compensation when his or her employer closes one or more locations because of a quarantine order and there is no work for the employee to perform.

Clarification on the recovery for employees when the DOL brings an enforcement action against employers refusing to compensate employees for taking paid sick leave (DOL Q&A #88). Refusing to compensate employees for taking paid sick leave constitutes a failure to pay minimum wage, and employers will be subject to the enforcement provisions of the Fair Labor Standards Act. Under the enforcement provisions, employers will be liable to affected employees for the full amount due to them under the FFCRA, which is the employee’s regular rate or applicable minimum wage, whichever is greater (and subject to the applicable FFCRA caps).

  • NOTE: There are additional consequences for employers that refuse to provide paid sick leave. Employers could be responsible for fines up to $10,000 and six months in jail. For repeat offenders, employers face growing fines of $1,100 for each subsequent violation.

Our Employment & Labor Practice Group attorneys are continuously monitoring developments and are available to answer your questions regarding these high-level updates as well as specific situations that your business may encounter related to COVID-19.

* This post assumes the reader’s familiarity of the basics of the FFCRA and is intended to be a synopsis of top takeaways for employers.

Link to COVID-19 Resources page

Almost two weeks after the effective date of the Families First Coronavirus Response Act (FFCRA), many employers are still not certain what information and documents they should obtain from employees who request emergency paid sick leave and/or expanded family and medical leave. To recap, there are six reasons an employee can take emergency paid sick leave.

A covered employer must provide such leave when an employee is unable to work or telework for any of the following reasons:

  1. Employee is subject to a government-issued quarantine or isolation order related to COVID-19;
  2. Employee has been advised to self-quarantine by a health care provider due to concerns related to COVID-19;
  3. Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. Employee is caring for an individual subject to a government-issued quarantine or isolation order or self-quarantine directed by a health care provider as described above in 1 and 2;
  5. Employee is caring for his or her child whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19; or
  6. Employee has a substantially similar condition specified by the U.S. Department of Health and Human Services. (No substantially similar condition has been identified as of yet).

There is only one qualifying reason that an employee can take expanded family and medical leave: The employee is unable to work or telework due to a need to care for his or her child whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.

The documentation requirements are slightly different depending on the type of leave the employee is seeking and, for paid sick leave, the reason giving rise to such leave. The DOL identifies the documentation that is required from an employee seeking to take the leave (see 29 CFR§ 826.100(a)-(e)) and then states the employer may also ask an employee “to provide such additional material as needed for the employer to support a request for tax credits” (see 29 CFR§ 826.100(f)) and references the IRS publication on COVID-19 tax credits. We have combined the requirements and added some options in an easy-to-follow format below.

Emergency paid sick leave

Both the DOL and IRS require the following four categories of documentation to substantiate emergency paid sick, regardless of the reason:

  • Employee’s name;
  • Date(s) leave is requested;
  • Support for the COVID-19 related reason for the paid sick leave requested; and
  • A statement that the employee is unable to work or telework due to that reason.

While the employee can provide this information orally and the employer document it, employers should strongly consider getting this information from employees in writing or providing employees with a written leave application to complete.

Additional documentation the DOL requires the employee to provide to the employer, along with other information the employer may consider requesting from the employee based on the reason for paid sick leave, follows:

Reason No. 1: Government-issued quarantine or isolation order: 

  • Name of government entity that issued the order (required)
  • Copy of the order (optional)

Reason No. 2: Health care provider’s advice to self-quarantine: 

  • Name of health care provider who gave this advice (required)
  • A note from the health care provider containing this directive (optional)

Reason No. 3: Employee has symptoms of COVID-19 and is seeking a diagnosis:

  • Identification of COVID-19 symptoms the employee is experiencing (optional)
  • Whether the employee has had any recent travel and any known exposure to a person who tested positive (optional)
  • Medical diagnosis once obtained, supported by health care provider’s note (optional)
  • Note from the health care provider if employee is advised to self-quarantine (optional)

Reason No. 4: Employee is caring for an individual subject to a government-issued quarantine or isolation order or health care provider’s advice to self-quarantine: 

  • Name of governmental entity ordering quarantine or isolation order OR name of health care provider advising self-quarantine (required)
  • Name of the individual for whom the employee is providing care (required)
  • The relation of the individual to the employee (required)
  • Copy of governmental order OR copy of health care provider’s advice (optional) 

Reason No. 5: Employee is caring for his or her child whose school or place of care is closed or whose child care provider is unavailable:

  • Name and age of each child the employee is caring for (required)
  • Name of school or place of care that is closed OR name of child care provider who is unavailable (required)
  • Written communication from or notice of closure posted on the website by the school or place of care for reasons related to COVID-19 (optional)
  • Written communication from the child care provider regarding his/her unavailability to provide child care for reasons related to COVID-19 (optional)
  • Statement by the employee that no other suitable person will be caring for the child during the period of leave (required)
  • For a child age 14 or older, a statement that special circumstances exist that require the employee to care for the child during daylight hours (required) and a description of such special circumstances (optional)
  • For a child age 18 or older, a statement that the child (1) has a physical or mental disability and (2) is incapable of self-care because of this disability (required) and the certification of the disabled adult child’s health care provider (optional)

Expanded family and medical leave

The same documentation is required and suggested for expanded family and medical leave as for emergency paid sick leave. See above and No. 5.

Recordkeeping requirements

In addition to obtaining the necessary support for the employee’s request for paid sick leave or expanded family and medical leave, employers must keep the following records for four years in the event of an audit, employee complaint, or litigation:

  • Documentation provided by the employee requesting paid sick leave or expanded family and medical leave regardless if leave was granted or denied, including documentation of verbal statements from employees regarding leave;
  • Documentation from an authorized officer of the employer regarding the denial of any request for paid sick leave or expanded family and medical leave;
  • Documentation to support a claim for tax credits, including:
    • How the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees who are eligible for the credit, including records of work, telework and paid sick leave and expanded family medical leave;
    • How the employer determined the amount of qualified health plan expenses the employer allocated to wages;
    • Copies of any completed IRS Forms 7200 the employer submitted to the IRS;
    • Copies of the completed IRS Forms 941 the employer submitted to the IRS or records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941; and
    • Any 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.

If you have questions about the information and documentation required by the DOL and IRS and other optional documentation when responding for employees’ requests for emergency paid sick leave and expanded family and medical leave, please contact one of the attorneys in our Employment & Labor practice group.

Link to COVID-19 Resources page

On April 9, 2020, the Equal Employment Opportunity Commission (EEOC) issued its updated Technical Assistance Questions and Answers titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” addressing several questions that have arisen since the beginning of this national emergency and reminding us that even during a pandemic, employers need to be cognizant of their obligations under the ADA and other EEO laws. A summary of the questions and answers is provided below.

A more comprehensive guide from the EEOC can be found in “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act,” which was drafted during the prior H1N1 outbreak and last revised on March 21, 2020, to address COVID-19.

Medical questions, testing and records under the ADA

The EEOC clarified that employers may ask employees if they are experiencing any symptoms of COVID-19 as identified by the Centers for Disease Control and Prevention and other governmental health authorities. As the responses to these questions are considered medical information under the ADA, documentation of these responses must be maintained by employers as confidential medical records. Employers should take care to limit their inquiries to questions such as, “Are you experiencing any of the following symptoms of COVID-19, including fever, difficulty breathing, cough, etc.” and avoid open-ended questions such as, “What are your symptoms?” that may result in employees disclosing unrelated and unnecessary medical information to their employers. The EEOC also notes the expansion of original symptoms to include loss of smell or taste as well as nausea, diarrhea and vomiting and suggests checking with the CDC and other reputable medical sources for updated lists of emerging symptoms.

Employers may, but are not required to, create new medical files to store an employee’s COVID-19 related information, including an employee’s statement that he or she has the disease, and any documents regarding requests for leave under the FFCRA. The EEOC reiterated that “the ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information.”

Employers may also take employees’ temperatures when they report to work. Again, any documentation of an employee’s temperature must be maintained as a confidential medical record. Employers may send employees home from work and require them not to report to work if they are experiencing any symptoms of COVID-19. Similarly, employers may require the employee to provide documentation from a medical provider that the employee is fit for duty in order to return to work after an illness, which the EEOC has specified can be a statement that the employee does not have COVID-19.

Hiring and onboarding during the pandemic

To ensure the safety of the employer’s existing workforce, the EEOC explained that employers may ask individuals who have been extended conditional offers of employment whether they are experiencing symptoms of COVID-19 as long as employers do so for each person offered the same type of job. Employers may also take a job applicant’s temperature as part of a post-offer pre-employment medical exam. Individuals with conditional offers of employment may have their start dates pushed back by employers if they have COVID-19 or are experiencing symptoms of COVID-19.

Interestingly, the EEOC explained that if an individual has an immediate start date but has COVID-19 or symptoms of COVID-19, the employer may withdraw the offer of employment because the individual cannot safely enter the workplace. However, the EEOC stated that if an individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19, an employer may not delay the start date or withdraw an offer because “being at a greater risk does not justify unilaterally postponing the start date or withdrawing a job offer.” The EEOC encourages employers to discuss telework and have open discussion allowing the individual to make a personal decision about delaying the start date.

Reasonable accommodations

The EEOC advised that employers must consider reasonable accommodations for an employee who has a preexisting disability that puts the employee at a higher risk for COVID-19 when telework is not an option. For example, if an employee requests an accommodation that would limit the employee’s exposure in the workplace, the employer may consider “low-cost solutions achieved with materials already on hand or easily obtained … [including] changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.” The EEOC encouraged employers to be flexible and creative. Other accommodations may be temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment.

Employers should also be mindful of employees with pre-existing mental illnesses or disorders that may be exacerbated by the pandemic and thus may require reasonable accommodations absent undue hardship. As with any accommodation request, the employer may ask questions to determine whether the condition constitutes a disability, discuss how the employee’s requested accommodation will assist him or her to keep working, and be open to alternative accommodations to assist the employee in performing the functions of the job.

Finally, employers should be aware that employees already receiving reasonable accommodations may need different or adjusted accommodations if they are teleworking or have an altered worksite environment. Employers can ask whether the same or a different disability is the basis for this new request and why an additional or adjusted accommodation is needed. As with any request for accommodation, the employer should engage in the interactive process with the employee, request medical support if needed, and document the discussions.

Pandemic-related harassment and discrimination

Lastly, the EEOC reminded employers that they can help reduce the chance for harassment and discrimination by “by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.” The EEOC has created several tools for employers to use to prevent, address and mitigate harassment and discrimination and provided links to them in the Technical Assistance Questions and Answers. Employers should not wait until employees return to work in brick-and-mortar buildings to communicate anti-discrimination and anti-harassment expectations to their employees.

If you have questions about your obligations under the various laws enforced by the EEOC and how they are impacted by the COVID-19 pandemic, please contact one of the attorneys in our Employment & Labor practice group.

Link to COVID-19 Resources page

Q&A on FFCRAAttempting to further clarify the confusion faced by employers following passage of the Families First Coronavirus Response Act (FFCRA), the U.S. Department of Labor (DOL) issued its fourth set of Q&As (#60-79) to help with implementation.

The DOL issued its first set of Q&As (#1-15) on March 24, 2020 (read more here), followed closely by its second set (#16-37) and third set (#38-59) on March 26 and March 28, respectively (read more here). The DOL also released a temporary rule issuing regulations applicable to the FFCRA on April 1 (read more here).

With its latest release, the DOL continues its efforts to clarify the circumstances under which paid sick leave and expanded family and medical leave under the FFCRA must be provided to eligible employees. A full text of the DOL’s Q&As can be found here. Highlights from the fourth set include:

  • Quarantine or isolation orders include shelter-in-place or stay-at-home orders. Employees may be entitled to paid sick leave if the employer has work for the employee to perform (including telework), but the employee is prevented from working by a federal, state or local shelter-in-place order. However, the employee is not entitled to paid sick leave if the employer closes or does not have work available due to a shelter-in-place order.
  • An employee’s decision to self-quarantine must be supported by a directive or advice from a health care provider. An employee is eligible for paid sick leave if a health care provider directs or advises the employee to stay home because the employee may have COVID-19 or may be susceptible to COVID-19, for example because of an underlying medical condition. However, an employee is not eligible for paid sick leave where the employee unilaterally decides to self-quarantine without ever seeking medical advice to self-quarantine, even if the employee exhibits COVID-19 symptoms. The decision must be supported by medical advice.
  • Paid sick leave to care for another person is limited. An employee may take paid sick leave to care for an immediate family member or someone who regularly resides in their home who is subject to a quarantine order from a health care provider where the provision of care prevents the employee from working (including telework). An employee may also take paid sick leave to take care of someone where the relationship between the parties creates an expectation that the employee would care for the person subject to a quarantine order, and that individual depends on the employee for care during the quarantine or self-quarantine. But paid sick leave is not available for an employee to take care of someone with whom there is no pre-existing relationship, or an expectation that the employee will care for the person during the quarantine or self-quarantine.
  • Paid sick leave and expanded family and medical leave are available to care for disabled children over the age of 18. If the child is unable to take care of himself or herself due to the disability, an employee may take paid sick leave and expanded family and medical leave to care for the child if the child’s school or place of care is closed or his/her child care provider is unavailable, provided the employee is otherwise unable to work (including telework).
  • Paid sick leave and expanded family and medical leave may not be available where another parent is already caring for the child. Paid sick leave and expanded family and medical leave are only available when needed. If another parent, guardian or child care provider is available to provide care for the child, an employee may not be entitled to paid sick leave or expanded family and medical leave.
  • Schools are closed, even if teaching is being handled remotely. For purposes of determining paid sick leave and expanded family and medical leave eligibility, schools are considered closed if the physical facility is closed. This is true even if some or all instruction is being provided online or through another format and the child is still required to complete assignments.
  • At this time there are no “substantially similar conditions.” The FFCRA included a provision that allowed employees to take paid sick leave for “substantially similar conditions” as defined by the U.S. Department of Health and Human Services (HHS). At this time, HHS has not identified any such condition.
  • Paid sick leave and expanded family and medical leave are generally not available with other forms of leave. An employee receiving workers’ compensation or temporary disability benefits is generally not eligible for paid sick leave or expanded family and medical leave because the employee is unable to work, unless the employee is released for light duty, the employer has light duty available, and a qualifying reason prevents the employee from performing the light duty. Where an employee is on an employer-approved leave of absence, the employee is not eligible for paid sick leave or expanded family and medical leave. However, if the leave of absence is voluntary, the employee may terminate the leave and begin taking paid sick leave or expanded family and medical leave where a qualifying reason exists. If the leave of absence is mandatory, then the employee is unable to work for reasons other than a qualifying reason and is not eligible for paid sick leave or expanded family and medical leave.
  • DOL enforcement will be retroactive to April 1, 2020. Although the DOL announced it will not enforce the FFCRA from April 1 through April 16, it expects employers to make good faith efforts to comply and will retroactively enforce violations that are not remedied before April 17.

* This post assumes the reader’s familiarity of the basics of the FFCRA and is intended to be a quick synopsis of top takeaways for employers.

Our Employment & Labor Practice Group attorneys are continuously monitoring developments and are available to answer your questions regarding these high-level updates as well as specific situations that your business is encountering related to COVID-19.

Link to COVID-19 Resources page

New Rules signOn April 1, 2020, the Department of Labor released a temporary rule issuing regulations under the Families First Coronavirus Response Act (FFCRA) effective immediately through December 31, 2020. Employers who have been wrestling with compliance with the FFCRA’s paid leave provisions will recognize much of the material in these regulations from the DOL’s informal guidance or from the CARES Act’s amendments to the FFCRA*. The regulations also include some helpful clarification:

  • Broad definition of child care provider: The definition of “child care provider” includes a center-based child care provider, a group home child care provider, a family child care provider, or other provider of child care services for compensation that is licensed, regulated or registered under state law. It also includes a family member (g. grandparent) or friend (e.g. neighbor) who regularly cares for the employee’s child, even if that person is not licensed or paid for providing the child care services.
  • Definition of place of care. “Place of care” means a physical location where care is provided for the employee’s child while the employee works. It can include schools, homes, summer camps, summer enrichment programs and respite care programs.
  • Subject to a quarantine or isolation order: An employee subject to a quarantine or isolation order (g. “shelter in place”) may not take paid sick leave where the employer does not have available work for the employee as a result of the order or other circumstances. This is because the employee would be unable to work even if he or she was not required to comply with the quarantine or isolation order. The question is whether the employee would be able to work or telework “but for” being required to comply with an order.
  • Advised by health care provider to self-quarantine: An employee who is advised by a health care provider to self-quarantine for a COVID-19 reason may only take paid sick leave if that advice is based on the health care provider’s belief that the employee has or may have COVID-19 or is particularly vulnerable to COVID-19, and self-quarantining prevents the employee from working, including telework.
  • Seeking medical diagnosis for COVID-19: Paid sick leave taken because an employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis is limited to time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for or attending an appointment for a test for COVID-19. Note that an employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.
  • Caring for an individual. Where an employee is caring for an individual who is subject to a federal, state or local quarantine or has been advised by a health care provider to self-quarantine, “individual” means an employee’s immediate family member, a person who regularly lives in the employee’s home (g. a roommate), 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. This does not include those with whom the employee has no personal relationship.
  • Caring for a son or daughter. An employee may take paid sick leave or may qualify for expanded family and medical leave to care for his or her child whose school or place of care has been closed, or whose child care provider is unavailable, only if no other suitable person, such as a co-parent, co-guardian or the usual provider, is available to care for the child during the period of such leave. Thus, an employee may take paid sick leave to care for his or her child only when the employee needs to, and actually is, caring for the child.
  • Effect of furloughs and layoffs on employer eligibility: The number of employees counted toward the 500-employee eligibility threshold does not include workers who have been laid off or furloughed and have not been subsequently re-employed.
  • Election of the small business exemption: Employers must document the determination that their business qualifies under one of the small business exemptions. Sending the documentation to the DOL is unnecessary; instead, employers should retain the documentation in their files.
  • Posting still necessary even if one elects small business exemption: Employers must post the FFCRA’s notice, regardless of whether they decide to exempt one or more employees. Further, besides the requirements previously noted, employers furnishing notices to sensory-impaired individuals also must comply with all requirements under federal or state law.
  • Calculation of leave: When an employee takes paid sick leave or expanded family and medical leave intermittently to care for a child whose school or place of care is closed (when agreed to by the employer), only the amount of leave actually taken may be counted against the leave allotment. For instance, if an employee works 40 hours a week and takes three hours of leave each work day (for a total of 15 hours a week), then that employee has used 15 hours of the employee’s paid sick leave, or 37.5 percent of a workweek of the employee’s expanded family and medical leave.
  • Maximum of 12 workweeks of expanded family and medical leave even if the period spans two FMLA leave periods: Even though a portion of the 12 weeks falls in an employer’s prior 12-month period, the employee can only take a cumulative total of 12 weeks of expanded family and medical leave. For example, if an employer’s 12-month period begins on July 1, and an employee took seven weeks of expanded family and medical leave in May and June 2020, the employee would only have five weeks of expanded family and medical leave remaining between July 1 and Dec. 31, 2020, when the Emergency Family and Medical Leave Expansion Act expires.
  • Employees’ duty to provide notice of need for leave: Other than caring for one’s child whose school or place of care has been closed for reasons related to COVID-19, employers may require employees to follow reasonable notice procedures after the first workday for which an employee takes paid sick leave for any reason. A procedure is reasonable based on the facts and circumstances. The DOL explains that it is reasonable for the employer to require the employee to comply with the employer’s existing notice procedures and requirements, absent unusual circumstances. The DOL encourages employees to notify employers about their request for leave as soon as practicable. Prior to denying the request for leave for failure to give proper notice, the employer should give the employee notice of the failure and an opportunity to provide the required documentation.
  • Timing and delivery of notice: When an employee requests leave in order to care for a child whose school or place of care is closed or child care provider is unavailable, if the need for leave is foreseeable, the employee shall provide the employer with notice of his need to take paid sick leave or expanded FMLA leave as soon as practicable. For any other reason giving rise to paid sick leave, notice can be encouraged but may not be required in advance and may only be required from an employee after the first full or partial day that an employee takes paid sick leave or expanded FMLA leave. After that first day, an employer may require notice as soon as practicable under the circumstances, and an employee’s spouse, family member or other spokesperson may give the notice if the employee is unable to do so personally.  Oral notice is sufficient but must be documented by the employer for its records.
  • Documentation of need for leave: An employee must provide the employer documentation containing the following information when taking paid sick leave or expanded FMLA leave:
    • Employee’s name;
    • Date(s) for which leave is requested;
    • The COVID-19 qualifying reason for the leave; and
    • Oral or written statement that the employee is unable to work because of the COVID-19 qualifying reason for leave.

Additional documentation is required as follows:

    • If the reason for paid sick leave is that the employee is subject to a quarantine or isolation order, then the employee must also provide the employer with the name of the government entity that issued the quarantine or isolation order.
    • If the reason for paid sick leave is that the employee’s health care provider has advised the employee to self-quarantine due to concerns related to COVID-19, then the employee must also provide the employer with the name of the health care provider who gave this advice.
    • If the reason for paid sick leave is that the employee is caring for an individual subject to a quarantine or isolation order or who has been advised to self-quarantine by a health care provider, then the employee must also provide either (1) the government entity that issued the quarantine or isolation order to which the individual is being cared for; or (2) the name of the health care provider who advised the individual to self-quarantine.
    • If the reason for paid sick leave is that the employee is caring for a child whose school or place of care is closed, then the employee must also provide (1) the name of the child being cared for; (2) the name of the school or place of care that closed or is a care provider who is unavailable; and (3) a representation that no other suitable person will be caring for the child during the period of leave.
    • Of note, the employer may also ask an employee to provide additional material needed to support a request for tax credits pursuant to the FFCRA. The employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided, see https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs
  • Health and wellness benefit coverage must be maintained: Akin to the FMLA, any employee taking paid sick leave or expanded FMLA leave is entitled to continued health and wellness benefits provided by the employer, including continued benefits for the employee’s dependents. Similarly, if the employer provides a new health benefit or changes plans while the employee is on leave, the employee is entitled to the new or changed plan or benefit as if the employee was not on leave. The employee is responsible for applicable premiums. If leave is unpaid or the employee’s pay is insufficient to cover the share of premiums, the employer may obtain payment from the employee in accordance with 29 CFR § 825.210(c).
  • Recordkeeping: Employers must keep the following records for four years:
    • all documentation provided by the employee requesting paid sick leave or expanded FMLA leave regardless if leave was granted or denied, including documentation of verbal statements from employees regarding leave;
    • documentation from an authorized officer of denial of any request for paid sick leave or expanded FMLA leave;
    • Documentation to support a claim for tax credits, including:
      • how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees who are eligible for the credit, including records of work, telework and paid sick leave and expanded family medical leave;
      • how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
      • copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
      • copies of the completed IRS Forms 941 that the employer submitted to the IRS or records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941; and
      • any 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.
  • Complaints and enforcement under the Emergency Paid Sick Leave Act (EPSLA): An employer who fails to provide leave under EPSLA is considered to have failed to pay the minimum wage as required by Section 6 of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 206, and is subject to the enforcement provisions of Sections 16 and 17 of the FLSA, 29 U.S.C. § 216, 217. Similarly, an employer who discharges, disciplines or discriminates against an employee in violation of EPSLA is considered to have violated Section 15(a)(3) of the FLSA, 29 U.S.C. 215(a)(3), and is subject to the enforcement provisions in Sections 16 and 17 of the FLSA. Complaints regarding violations can be filed in person, by mail or by telephone with the Wage and Hour Division of the DOL. The Secretary of the DOL has the authority to investigate complaints and subpoena power.
  • Complaints and enforcement under the Emergency Family and Medical Leave Expansion Act (EFMLEA): An employer who interferes with an employee’s rights under the EFMLEA or discriminates against an employee for exercising those rights is subject to the enforcement provisions of Section 107 of the FMLA, 29 U.S.C. § 2617 and 29 C.F.R. § 825.400, except the employee may file a private action to enforce the EFMLEA only if the employer is otherwise subject to the FMLA. Complaints regarding violations can be filed in person, by mail, or by telephone with the Wage and Hour Division of the DOL. The Secretary of the DOL has the authority to investigate complaints and subpoena power.
  • Sequencing: An employer may not require, coerce or unduly influence any employee to first use any other unpaid or paid leave to which the employee is entitled before the employee uses paid sick leave. Importantly, however, the employer may require the employee to use provided or accrued paid leave under the employer’s policies concurrently with EFMLEA. If the leave is taken concurrently, the employer must pay the employee the full amount to which the employee is entitled under the pre-existing paid leave policy for the period of leave taken.
  • No payout of unused paid leave: There is no obligation to pay an employee for unused paid sick leave or expanded family and medical leave upon employee’s cessation of employment or after Dec. 31, 2020.
  • One-time use of EPSLA: An employee is only entitled to 80 hours of paid sick leave. An employee who has taken all 80 hours and then changes employers is not entitled to additional leave from the new employer. An employee who has taken some, but fewer than 80 hours of leave, and then changes employers is entitled only to the remaining portion of the leave and only if the new employer is covered by the EPSLA.

*This post assumes the reader’s familiarity of the basics of the FFCRA and is intended to be a synopsis of top takeaways for employers.

Our Employment & Labor Practice Group is continuing to monitor these developments and is available to answer your coronavirus questions.

Link to COVID-19 Resources page

Unemployment spelled on wooden tilesAs claims for unemployment rise, Missouri and Illinois have eased the typical restrictions for unemployed workers to obtain benefits. Coupled with the Federal Pandemic Unemployment Compensation, which is being administered by the states, both employers and employees are seeing some relief during the COVID-19 pandemic.

Missouri

In Missouri, the Department of Employment Security (DES) under the authority of Missouri EO20-4, advised that for employees who have been terminated or laid off due to business events resulting from the COVID-19 pandemic: (1) the requirement that employees actively search for work in order to receive benefits is suspended; and (2) the requirement that employees must have a week of unemployment before receiving benefits is suspended. Importantly, DES is looking at each situation on a case-by-case basis, and an individual who is unable to work because of illness, quarantine or school closures, even if work is available, may be eligible for benefits.

With respect to employers, DES is waiving charging COVID-19 related claims on employers’ unemployment insurance accounts, which will help employers avoid negative impact on their payroll tax rate. DES has also extended the first-quarter employer Contribution and Wage payment due date to June 1, 2020. However, Contribution and Wage reports are still due by April 30, 2020.

DES also provides a way for employers to file a mass claim for their employees when the employer has a shutdown that affects 10 or more employees and the layoff is due to a lack of work. If an employer wants to avoid layoff, DES also has a work-share program for qualified employers.

Illinois

Illinois has also suspended certain qualification requirements for individuals seeking unemployment benefits because they were terminated or laid off for COVID-19 related reasons. Specifically, individuals do not have to register with a work placement agency, but they must be ready and willing to return to work when it becomes available. Individuals can also file a claim as soon as they are no longer physically working, as the waiting period to submit an application has been suspended.

The Illinois Department of Employment Security (IDES) has stressed that it is striving to maintain flexibility in providing benefits to individuals impacted by workload reductions. For example, if a worker is employed off and on with the same employer, such as during a furlough that is two weeks on and two weeks off, the worker can qualify and obtain benefits during the furlough periods.

IDES also published several FAQs outlining the various circumstances when an employee who otherwise would be ineligible for unemployment benefits can obtain them if the employee is out of work because of a consequence of the COVID-19 pandemic. For example, in response to the question: What if I leave work because my child’s school has temporarily closed, and I feel I have to stay home with the child? IDES explained that typically an individual who left work to address child care needs would be disqualified. However, since all schools statewide are closed and there are unlikely alternatives for childcare, an individual who left work to care for the child could be considered as unemployed through no fault of his her own and qualified for benefits as long as the individual meets the other eligibility requirements (be able and available for work from the confines of home, registered with the state employment service, and actively seeking work from the confines of home, assuming the individual is qualified and such work is available).

Unlike Missouri, IDES is still charging COVID-19 related claims to employers’ unemployment insurance accounts. However, there is a push by the business community and industry groups to enact legislation that would universalize such layoffs or terminations instead of making them solely charged to the individual employer, but that has yet to come to fruition.

Finally, across the country, independent contractors, business proprietors and some individuals not typically covered by unemployment benefits may also be able to obtain benefits if they experience a lack of work due to COVID-19 restrictions. Again, each situation is being analyzed on a case-by-case basis by each state.

Our Employment & Labor Practice Group is continuing to monitor these developments and is available to answer your coronavirus questions.

Link to COVID-19 Resources page