This post was updated on April 4, 2020.

The CARES Act tweaks the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act and establishes Federal Pandemic Unemployment Compensation to supplement state unemployment. Employers should take note of these provisions.

President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) on March 27, 2020. This extensive 880-page stimulus legislation is packed full of a variety of incentives for employers and their workers, which employers will want to consider as they decide how to manage their workforce in the coming days, weeks and even months. One important piece of the legislation is the Paycheck Protection Program discussed here. In this blog, we tackle the portions of the CARES Act that amend the Emergency Paid Sick Leave Act (“EPSLA”) and Emergency Family and Medical Leave Expansion Act (“EFMLEA”), which take effect on April 1, 2020 and were previously covered  here. We also discuss the enhanced unemployment benefits made available to workers by the CARES Act.

EPSLA and EFMLEA Cleanup

As noted above, the CARES Act includes a handful of clarifications related to the EPSLA and EFMLEA, which were passed last week. Those tweaks include: 

• Clarifying that pay under the EFMLEA is capped at $200 per day per employee and $10,000 per employee.
• Clarifying that pay under the EPSLA is capped at $511 per day per employee and $5,110 per employee for EPSLA taken for those who are under quarantine (government or health care ordered) or are experiencing symptoms of COVID-19 and being tested.
• Clarifying that pay under the EPSLA is capped at $200 per day per employee and $2,000 per employee for EPSLA for employees who are caring for quarantined or sick individuals or a child whose school or child care is closed or unavailable.
• Extending the definition of “eligible employee” under the EFMLEA to include an individual laid off March 1, 2020, or later, who was employed for 30 of the 60 days prior to the layoff and who is rehired by the employer. Employers who have done layoffs prior to the effective date of the Acts will need to be mindful of this provision if they subsequently rehired those workers.
• Providing for the creation of a process for employers to seek advances of the tax credits provided under the EPSLA and EFMLEA, with regulations to follow.

It is noteworthy that on March 26, the U.S. Department of Labor also issued new guidance clarifying that in circumstances when an employee is out of work due to lack of work, the employee’s recourse is to seek unemployment benefits and not to receive leave under the EPSLA or EFMLEA. Unlike the DOL’s initial Guidance, which did not shed much light on how to navigate the new laws, the DOL’s subsequent Guidance clarifies a number of grey areas that employers have been struggling with as they approach the April 1, 2020, effective date for the EPSLA and EFMLEA. The new Guidance is available here and begins at Question No. 15.

Federal Pandemic Unemployment Compensation

Given the DOL’s clarification that an employee who is out of work due to a lack of work is not eligible for leave under the EPSLA or EFMLEA and is instead eligible for unemployment benefits, the expansive unemployment program created by the CARES Act is all the more important. The unemployment program is to be administered by the states. Among the features of this program are:

• Coverage for individuals normally not covered by unemployment, such as those who are self-employed, independent contractors and gig workers.
• A $600 per week payment on top of the normal unemployment benefit to be paid by the state to individuals who would be eligible if the state law were applied. This benefit, referred to as “Federal Pandemic Unemployment Compensation,” is payable regardless of how much the individual earns. This is not charged against the employer’s experience rating. This benefit expires July 31, 2020.
• An extension of up to 13 weeks of additional unemployment benefits known as “Pandemic Emergency Unemployment Compensation” in addition to the standard 26 weeks that are normally available under state law. To obtain the additional 13 weeks, individuals must be able to work, available to work and actively seeking work. 
• Coverage for the first week of unemployment benefits in states that provide benefits during a person’s first week of unemployment. This eliminates the typical waiting period, allowing faster access to the funding.
• The Act also makes up to 39 weeks of unemployment assistance available to individuals who are unavailable to work due to COVID-19. To be eligible for this benefit, an individual must certify that he/she is unemployed, partially unemployed, or unable or unavailable to because —
1. the individual has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
2. a member of the individual’s household has been diagnosed with COVID-19;
3. the individual is providing care for a family member or a member of the individual’s household who has been diagnosed with COVID-19;
4. a child or other person in the household for whom the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work;
5. the individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency;
6. the individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
7. the individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of the COVID-19 public health emergency;
8. the individual has become the breadwinner or major support for a household because the head of the household has died as a direct result of COVID-19;
9. the individual has to quit his or her job as a direct result of COVID-19;
10. the individual’s place of employment is closed as a direct result of the COVID-19 public health emergency; or
11. the individual meets any additional criteria established by the Secretary for unemployment assistance.
• Individuals are not eligible for the new unemployment benefit if:
1. They have the ability to telework with pay or
2. They are receiving sick leave or other paid leave benefits under the EPSLA or EFMLEA.

Union protection

Mid-sized employers, defined as those with between 500 and 10,000 employees, that receive stimulus funding will have to certify (among other things):

• The employer will not terminate any collective bargaining agreement to which it is a party during the term of the loan or for two years after repayment.
• The employer will remain neutral to union organizing during the loan.

Small business loans

Again, a key piece of the CARES Act is expansion of the Small Business Administration’s (SBA) Section 7(a) Loan Program to get liquidity to qualifying businesses and to encourage such businesses to keep employees on their payroll. 

Title I of the CARES Act creates a Paycheck Protection Program, which increases eligibility for Section 7(a) loans for certain small business and organizations and provides terms that allow portions of the loans to be forgiven based on the borrower’s retention of employees. Read more about the key elements businesses need to understand in this article by Greensfelder’s Business Services team.

Emergency funding for individuals

In the context of concern for employee well-being, employers should also be aware of the emergency funding for individuals provided in the CARES Act.  The new stimulus bill includes direct funding of up to $1,200 per adult and $500 for each child. Individuals who reported $75,000 adjusted gross income or less and couples with an adjusted gross income of $150,000 or less will receive the full amount, with the amount decreasing for each additional $1,000 earned. Individuals with an AGI of $99,000 or over ($198,000 for a couple) will not receive this funding.

Finally, the new legislation also allows employees to withdraw up to $100,000 from qualified retirement plans without penalty for COVID-19-related reasons.

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

Link to COVID-19 Resources page

On March 18, 2020, President Trump signed legislation extending to certain employees paid sick time related to COVID-19 and paid leave under the Family and Medical Leave Act (FMLA). As part of the legislation, employers must display the Department of Labor (DOL) poster notifying employees of their rights under the Families First Coronavirus Response Act (FFCRA). On March 25, 2020, the DOL published two posters, for federal and non-federal employers.

Below, please find a quick Q&A to help clarify the requirements and potential concerns:

Who is required to display the poster? Private employers with fewer than 500 employees and certain public sector employers.

Where must the poster be displayed? Employers are required to display the DOL poster in obvious places on their premises where notices to employees are usually posted. Below are a few scenarios explaining where the poster must be displayed:

• When employees report to the headquarters each day and go off to different worksites, employers need to post the notice where employees can see it at the headquarters.
• When employees report to multiple buildings, employers must post all required federal notices in each building.
• When employees work on multiple floors in a building, employers need to post the notice where employees can easily see the notice on each floor, i.e. break rooms.
• When most of the workforce is teleworking, emailing or direct mailing this notice to employees would satisfy this requirement. Also, employers can post this notice on their internal or external website to satisfy this requirement.

Does the poster need to be in other languages? Not yet. But the DOL is working to translate the poster into other languages.

Who does the employer have to share the poster with? Employers are only required to share it with current employees and new hires. The DOL’s Q&A explained that employers are under no obligation to share the notice with recently laid-off employees or applicants.

When will the next updated poster come out? The DOL has not communicated that at this time, but employers can sign up for key new alerts at www.dol.gov/agencies/whd.

If you have questions about whether your company is in compliance with the DOL’s posting requirements, please contact one of the attorneys in our Employment & Labor practice group.

Link to COVID-19 Resources page

The Department of Labor (DOL) on March 24, 2020, released its first guidance explaining aspects of paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA). The DOL released fact sheets aimed at both employees and employers as well as a Q&A document and promised more guidance to come. The guidance discusses how employers and employees can “take advantage of the protections and relief” offered by the FFCRA’s Paid Sick Leave Act and Emergency Family and Medical Expanded Leave Act.

The guidance reiterates key aspects of the FFCRA and expands some issues related to implementation of the FFCRA’s paid leave. Notably, the guidance confirms the following:

• Effective date: The act goes into effect on April 1, 2020, and covers qualifying leave taken between April 1, 2020, and Dec. 31, 2020. The effective date is one day earlier than the date most employers calculated as the effective date.
• Small business exemption: Businesses with fewer than 50 employees that hope to take advantage of the small business exemption should “document why [the] business … meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.” The guidance advises small businesses “not to send any materials to the [DOL] when seeking a small business exemption.”
• Part-time workers: Leave benefits for part-time employees should be calculated based upon the number of hours the employee is normally scheduled to work. If that number is unknown or varies over time, the calculation can be based upon an average over a six-month look-back period, the number of hours per week agreed upon at hire, or the average number of hours per day the employee has been scheduled to work during his or her employment.
• Overtime: Overtime must be accounted for in calculating an employee’s paid leave, but an employee’s entitlement to paid sick leave is still capped at 80 hours over a two-week period. Additionally, the daily and aggregate dollar caps for employee pay still apply to both types of paid leave, and pay does not need to include a premium for overtime hours.
• Calculation of the regular rate: The regular rate of pay for purposes of the FFCRA is the average of the employee’s regular rate of pay over a six-month look-back period preceding the employee’s leave (or over the employee’s entire employment, if less than six months). Tips, commissions, and piece rates are all considered in the calculation of the regular rate.
• No double-dipping on paid sick leave: Each employee is entitled to a maximum of 80 hours of paid sick leave. An employee cannot take 80 hours of paid sick leave for one qualifying reason and then take additional paid sick leave for a different qualifying reason.
• Benefits not retroactive: Paid leave under the FFCRA is not retroactive. Even if an employer has allowed an employee to take paid leave for a reason identified by the Paid Sick Leave Act prior to the FFCRA’s effective date, the Paid Sick Leave Act imposes a new leave requirement effective April 1.
• Thirty-day eligibility period for expanded FMLA leave: Employees are considered to have been employed for at least 30 calendar days if they have been on the employer’s payroll for 30 calendar days immediately prior to the date the leave would begin. A worker who has been employed as a “temporary employee” who is then hired on a full-time basis may count the days worked as a temporary employee toward the 30-day eligibility period.
• Calculating the 500-employee threshold: The 500-employee eligibility threshold is calculated as of the day the employee intends to take leave. The calculation counts both full-time and part-time employees, including employees on leave, temporary employees who are jointly employed by another employer, and day laborers supplied by a temp agency.

The guidance leaves many vexing questions unanswered, such as what constitutes a “quarantine or isolation order,” how intermittent leave should be handled, and the criteria for determining when a small business qualifies for an exemption. Apart from promising forthcoming guidance and Q&As on additional issues, the DOL has explained that it will provide the required notice poster no later than March 25.

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

The Families First Coronavirus Response Act (the “Act”) recently signed into law includes, among other things, provisions for required paid sick and paid family and medical leave (see our previous blog post here). The Act is intended to alleviate some of the economic burden the coronavirus has imposed on workers by mandating certain paid leave. The Act additionally alleviates the economic burdens being imposed on employers by providing certain tax benefits to employers making payments required under the Act. 

Payroll credit for required paid sick leave: Employers are allowed a tax credit against payroll taxes (the employer’s portion of Social Security and Medicare taxes) equal to 100 percent of the “qualified sick leave wages” paid during the quarter. The term “qualified sick leave wages” means wages required to be paid by the Emergency Paid Sick Leave Act.

The credit is subject to various limitations. First, there is a limit on the wages per employee that may be taken into account, being $200 or $511 per day depending on circumstances. The days that can be taken into account are also generally limited to 10 per employee.

Credit increased for qualified health plan expenses: The payroll credit for required paid sick leave is increased by “qualified health plan expenses” allocable to the creditable qualified sick leave wages. Qualified health plan expenses are amounts the employer pays under a group health plan, which are excludible from employee gross income under the Internal Revenue Code.

Credit for sick leave for certain self-employed individuals: The tax credit is extended to certain self-employed individuals who would be entitled to paid sick leave under the Emergency Paid Sick Leave Act if they were employees. Their credit is determined under a qualified sick leave equivalent amount formula.

Payroll credit for required paid family leave: A payroll tax credit is also afforded employers for 100 percent of “qualified family leave wages,” which are wages required to be paid under the Emergency Family and Medical Leave Expansion Act.  There is a limit to creditable wages equal to $200 per day and $10,000 in the aggregate.

Rules increasing the credit by health plan expenses similar to the rules for qualified sick paid leave have been adopted.

Credit for family leave for certain self-employed individuals: The tax credit is extended to certain self-employed individuals who would be entitled to paid family leave under the Emergency Family and Medical Leave Expansion Act if they were employees. Their credit is determined under a qualified family leave equivalent amount formula.

Exemption from employer Social Security taxes: Paid leave under the Act is not considered wages for purposes of the employer’s portion of Social Security taxes.

No double benefit: So that the employer does not in effect receive both a tax deduction and a 100 percent tax credit for the same wages, the employer is deemed to receive additional income to wash out the deduction.

Refundable aspects of the credits: The credits are refundable to the extent they exceed the employer’s payroll tax liability.

Limitation in the case of receipt of other credit: Employers are not entitled to these credits if they claim the credit for paid family and medical leave under Code Section 45S.

Effective date: This credit applies from a date during the 15-day period beginning on the date of enactment to be determined and ending Dec. 31, 2020.

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

President Trump has signed legislation extending to certain employees paid sick time related to the coronavirus and paid leave under the Family and Medical Leave Act (“FMLA”). 

As covered in a previous post, the U.S. House of Representatives last weekend passed a previous version of the bill. In the days since, the House revised the legislation to update several of the provisions. The Senate passed the legislation on March 18 with a 90-8 vote. The President has now signed the legislation.

Here are key provisions of the Act for employers:

Emergency Paid Sick Leave Act

The legislation requires an employer with fewer than 500 employees to provide each employee paid sick time if the employee is unable to work (including remotely) because of:

1. A federal, state or local quarantine or isolation order related to COVID-19.
2. Advice from a health care provider to self-quarantine due to concerns related to COVID-19.
3. Experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. Caring for someone who is subject to a quarantine order or a health care provider’s advice to self-quarantine.
5. Caring for the employee’s child if the school or child care provider has been closed, or if the child care provider is unavailable, due to COVID-19 precautions.
6. Any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Other key points:

• Duration– Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are entitled to the number of hours worked, on average, over a two-week period. The time cannot be carried from one year to the next.
• Termination of paid sick leave – Paid sick leave ceases beginning with the employee’s next scheduled work shift after the termination of the need for paid sick time as described above.
• Sequencing – An employee may first use the paid sick time under the Sick Leave Act. An employer cannot require that the employee use other sick leave before paid sick leave under the Act.
• Posting – Each employer must post a notice to be prepared by the Secretary of Labor within seven days after the date of enactment.
• Anti-retaliation/anti-discrimination – An employer may not discharge, discipline or discriminate against any employee who takes leave under the Act or files any complaint or proceeding related to the Act.
• Paid sick leave calculation – Calculated based on compensation and the number of hours the employee would otherwise be normally scheduled to work, not to exceed:
  • $511 per day and $5,110 in the aggregate for employees who are under quarantine (government or health care ordered) or are experiencing symptoms of COVID-19 and being tested.
  • $200 per day and $2,000 in the aggregate for employees who are caring for quarantined or sick individuals or a child whose school or child care is closed or unavailable. In addition, if paid sick leave is taken in these circumstances, it is paid at two-thirds rather than 100 percent.
• Hardship – The Secretary of Labor shall have the authority to issue regulations for good cause:
  • to exclude certain health care providers and emergency responders from the definition of employee, including by allowing the employer of such health care providers and emergency responders to opt out;
  • to exempt small businesses with fewer than 50 employees from the requirements if they would jeopardize the viability of the business; and
  • as necessary, to carry out the purposes of the Act.

Family and Medical Leave Expansion Act

• Eligible employees are those who are employed for at least 30 calendar days.
• Covered employers are those with fewer than 500 employees for each of 20 or more calendar days during the current or preceding calendar year. However, an employer of an employee who is a health care provider or an emergency medical responder may elect to exclude such employee from the application of the Act.
• Purpose of leave – A qualifying need related to a public health emergency, which means “the employee is unable to work (or telework) due to a need to care for a son or daughter under age 18 years of age of such employee if the school or place of care has been closed or is unavailable due to a public health emergency. (Child care provider means a provider who receives compensation for providing child care services on a regular basis. School means an elementary or secondary school).
• Hardship – The Secretary of Labor shall have the authority to issue regulations for good cause:
  • to exclude certain health care providers and emergency responders from the definition of eligible employee; and
  • to exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business.
• Relationship to paid leave –
  • 10 unpaid days – The first 10 days may be unpaid, but the employee may elect to substitute accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.
  • Two-thirds thereafter – Leave is paid at two-thirds after the 10 days at the employee’s regular rate of pay “based on the number of hours that the employee would otherwise be scheduled work” for up to 12 weeks.
  • Maximum – In no event shall the paid leave under the FMLA Emergency Act exceed $200 per day and $10,000 in the aggregate.
  • Varying schedules – If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked, then the employer shall use a number equal to the average number of hours the employee was scheduled over the six-month period ending on the date when the employee takes leave. If the employee did not work such period, then the employer shall use the “reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”
• Notice – Employees must give employers such notice of the leave as is practicable.
• Restoration to position – An employer is required to restore an employee to the position held before the leave unless: (1) the employer has fewer than 25 employees, AND (2) the position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer: (i) that affect employment, and (ii) that are caused by a public health emergency during the period of leave.

Health care worker exclusion

The Paid Sick Leave Act and FMLA Emergency Act each contain provisions permitting an employer of a health care provider or an emergency responder to exclude such employees from the application of the Acts.

Effective dates

Both of the foregoing Acts take effect not later than 15 days after enactment.

Tax Credits for Paid Sick and Paid Family and Medical Leave for Employers and Self-Employed Individuals

Subject to certain limits, in the case of an employer, there shall be allowed as a credit an amount equal to 100 percent of the qualified sick leave wages and qualified family leave wages paid by the employer with respect to the calendar quarter. The Act also provides a credit for sick leave for certain self-employed individuals.

Unemployment Expansion

The Act also creates the Emergency Unemployment Insurance Stabilization Access Act of 2020, which makes millions of dollars available to the states for unemployment benefits arising from closures and layoffs due to COVID.

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

Congress has passed legislation on extending employees’ paid leave related to the coronavirus and expanding the FMLA, sending the bill to President Trump for his signature. 

As covered in a previous post, the U.S. House of Representatives last weekend passed a previous version of the bill. In the days since, the House had revised the legislation to update several of the provisions. The Senate passed the legislation on March 18 on a 90-8 vote.

Here are key provisions employers should note:

Emergency Paid Sick Leave Act

The legislation requires an employer with 500 or fewer employees to provide each employee paid sick time if employee is unable to work (including remotely) because of:

1. A federal, state or local quarantine or isolation order related to COVID-19.
2. Advice from a health care provider to self-quarantine due to concerns related to COVID-19.
3. Suffering symptoms of COVID-19 and seeking a medical diagnosis.
4. Caring for someone who is subject to a quarantine order or a health care provider’s advice to self-quarantine
5. Caring for the employee’s child if the school or child-care provider has been closed, or if the child care provider is unavailable, due to COVID-19 precautions.
6. Any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. (An employer of a health care provider or an emergency responder may elect to exclude that employee from the application of this subsection.)

 Other key points:

• Duration – Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are entitled to the number of hours worked, on average, over a two-week period. The time cannot be carried from one year to the next.
• Termination of paid sick leave – Shall cease beginning with the employee’s next scheduled work shift after the termination of the need for paid sick time as described above.
• Sequencing – An employee may first use the paid sick time under the Sick Leave Act. An employer cannot require that the employee use other sick leave before paid sick leave under the Act.
• Paid sick leave calculation – Calculated based on compensation and the number of hours the employee would otherwise be normally scheduled to work, not to exceed:
  • • $511 per day and $5,110 in the aggregate for employees who are under quarantine (government or health care ordered) or are experiencing symptoms of COVID-19 and being tested.
    • $200 per day and $2,000 in the aggregate for employees who are caring for quarantined or sick individuals or a child whose school or child care is closed or unavailable. In addition, if paid sick leave is taken in these circumstances, it is paid at two-thirds rather than 100 percent.
• Hardship – The Secretary of Labor shall have the authority to issue regulations for good cause:
  • • to exclude certain health care providers and emergency responders from the definition of employee, including by allowing the employer of such health care providers and emergency responders to opt out;
    • to exempt small businesses with fewer than 50 employees from the requirements if they would jeopardize the viability of the business; and
    • as necessary, to carry out the purposes of the Act.

Family and Medical Leave Expansion Act

• Eligible employees are those who are employed for at least 30 days. Covered employers are those with fewer than 500 employees
• Purpose of Leave – A qualifying need related to a public health emergency, which means the employee is unable to work (or telework) due to a need to care for a son or daughter under age 18 if the school or child care has been closed or is unavailable due to a public health emergency. (Child care provider means a provider who receives compensation for providing child care services on a regular basis. School means an elementary or secondary school).
• Hardship – The Secretary of Labor shall have the authority to issue regulations for good cause:
  • • to exclude certain health care providers and emergency responders from the definition of eligible employee; and
    • to exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business.
• Relationship to Paid Leave –
  • • The first 10 days may be unpaid, but the employee may elect to substitute accrued vacation leave, personal leave, or medical or sick leave for unpaid leave
    • Leave is paid at two-thirds after the 10 days for up to 12 weeks.

Tax Credits for Paid Sick and Paid Family and Medical Leave

Subject to certain limits, in the case of an employer, there shall be allowed as a credit an amount equal to 100 percent of the qualified sick leave wages and qualified family leave wages paid by the employer with respect to the calendar quarter.

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

OSHA requires that covered employers record certain work-related illnesses on their OSHA 300 log. On March 10, 2020, the Occupational Safety and Health Administration (OSHA) provided guidance on the recording of COVID-19. However, this guidance did not consider three key issues:

1. The problems employers face to determine where an employee contracted the virus (workplace vs. elsewhere);
2. The effect this broad policy could have on compensation plans; and
3. The effect on contractors’ safety ratings for insurance and owners.

Luckily, on March 13, 2020, OSHA provided additional guidance limiting when COVID-19 can be a recordable illness. This new guidance limits COVID-19 to be a recordable illness when the following three criteria are met:

1. The illness is a confirmed case of COVID-19 (for CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases click here);
2. The illness is work-related, meaning the employee’s work environment either caused or contributed to the resulting condition (However, there are situations where an injury or illness occurs in the work environment, but is not work-related — for examples click here); and
3. The illness results in loss of consciousness, days away from work, restricted work, transfer to another job or the illness requires medical treatment beyond first aid.

Finally, this is a good time to remember the following:

1. In situations where it is not obvious whether the exposure occurred in the work environment, employers must evaluate the employee’s duties and environment to determine whether the exposures in the work environment caused or contributed to the illness.
2. If an employee is traveling to and from customers, traveling to conduct job tasks, and entertaining or being entertained to discuss and promote the employer’s business at the time of illness occurs, then the illness is still work-related.
3. OSHA requires employers to report any fatality within eight hours or hospitalization within 24 hours. Additionally, fatalities occurring within 30 days of the work-related accident and in-patient hospitalizations occurring within 24 hours of the work-related incident must be reported to OSHA.

If you have questions about the recording requirements or need to update your injury-reporting policies, our Employment & Labor Practice Group attorneys can help identify and prevent possible OSHA violations.

Link to COVID-19 Resources page

The coronavirus outbreak known as COVID-19 has been spreading around the world, including the United States. Employers must respond in rapid fashion and face a series of questions regarding the impact the virus will have on the workplace. Below are answers to various questions all companies must know.

What if an employee presents with symptom of COVID-19? Can we require the employee to leave work and stay home?

Yes. If an employee presents at work with symptoms generally associated with COVID-19, e.g., a fever or difficulty in breathing, especially after being in a high-risk location, the employer may send the employee home, and require that the employee remain at home to protect the other employees in the workplace from being infected, for the recommended 14-day quarantine period. The legitimate business reason for doing so is the Americans with Disabilities Act’s (“ADA”) direct threat defense, specifically, that the employee’s presence would be a “direct threat” to the health or safety of the employee or others that cannot be reduced or eliminated by reasonable accommodation.

While an employee may allege that he or she is being “regarded” as disabled under the ADA, or that he or she is being singled out based on his or her particular race, the direct threat defense under the ADA should protect employers that apply this policy uniformly and in a non-discriminatory manner.

Additionally, the Center for Disease Control (“CDC”) recommends that employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4° F/37.8° C or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g., cough suppressants).

Further, the Occupational Health and Safety Act (“OSHA”) has recently set forth the following guidance advising the following in cases of suspected employee exposure to COVID-19:

• Employees who appear to have acute respiratory illness symptoms (e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately.
• Take steps to limit the spread of the potentially infectious individual’s respiratory secretions, including by providing a face mask.
• In health care and other situations where non-employees may be suspected of having the COVID-19, isolate those individuals from those with confirmed cases of the virus to prevent further transmission.
• Restrict the number of personnel entering isolation areas, including the room of a patient with suspected/confirmed COVID-19.
• Protect employees who must work in close contact with an actual or suspected infected person by using additional engineering and administrative controls, safe work practices and personal protective equipment.

What if an employee voluntarily discloses that he or she has tested positive for COVID-19 while having been in the workplace and working closely with others?

The answer is largely the same as above: The employee should immediately be sent home and required to stay home. Note, an employee who has been diagnosed with COVID-19 would qualify for leave under the Family and Medical Leave Act (“FMLA”) as such an infection would constitute a serious health condition under FMLA. Under the Occupational Safety and Health Administration (“OSHA”), all employers are required to provide a safe and health workplace, and under the ADA’s direct threat defense, that employee poses a direct threat to the health and safety of others in the workplace. Employers also should request that the infected employee identify all co-workers with whom he or she has come in close contact in the workplace in the past 14 days, and since the positive test. The employer should inform those employees that they may have been exposed to COVID-19 and send them home to seek treatment from their health care providers to ensure they have not contracted COVID-19. It is important for employers to remember their obligation to not violate confidentiality laws by disclosing the name of the infected employee to others.

Can employers require employees whom they suspect have been exposed to or contracted COVID-19 to be tested as a condition of returning to work?

Yes, under the ADA’s direct threat defense, and its obligation under OSHA, employers may require such employees to undergo job-related fitness for duty exams prior to returning to work, which includes confirmation by the employee’s health care provider of a negative test result. Note, however, that the CDC recommends that employers should not require a health care provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as health care provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way. This is mere guidance, however. As with all such COVID-19 employment-related matters, employers should consult with their employment attorney for discussing best practices in addressing individual situations.

Is an employer required to pay wages to its non-exempt employees and/or the salary to its exempt employees whom it is prohibiting from returning to work based on its reasonable belief that the employee may have been exposed to, or has contracted COVID-19?

The answer is largely dependent on the employer’s specific policies and the employee’s specific classification under the Fair Labor Standards Act (“FLSA”). Exempt employees must be paid their full salary for any workweek in which they perform more than a de minimus amount of work. That payment may consist of the required use of accrued paid time off, unless such required use is inconsistent with the employer’s paid time off policy. Once the accrued paid time off is exhausted, the employer may not deduct from an exempt employee’s salary unless the employee performs no services for the entire workweek. Non-exempt employees are only entitled to be paid for any hours worked; again, absent an employer’s paid time off policy and/or state or local law providing otherwise (e.g. paid sick leave, PTO or vacation).

Note, that on March 14, 2020, the U.S. House of Representatives passed COVID-19 designed to provide paid leave to employees during the outbreak. Labeled the Families First Coronavirus Response Act, if passed by the U.S. Senate and signed by President Trump, the legislation would require employers with fewer than 500 employees to provide American workers with up to 12 weeks of FMLA leave and two weeks of paid sick leave for certain reasons related to COVID-19. We have drafted a comprehensive summary of this legislation, which can be accessed here.

If we choose not to pay, for example, non-exempt employees whom we are requiring to work from home or self-quarantine, will they be eligible for unemployment insurance benefits?

Likely yes, but it largely depends on your state’s unemployment guidelines. Generally, unemployment insurance benefits provide temporary financial assistance to employees unemployed through no fault of their own that meet their state’s eligibility requirements. Additionally, employees generally must be able to and available for work each week that they are collecting benefits. In mandated all personnel “work from home” or required self-quarantine scenarios, employees who are not otherwise incapacitated and unable to work, likely will meet the above eligibility requirements. In Illinois, Gov. J.B. Pritzker recently announced that emergency rules will be issued clarifying that under the Illinois Unemployment Insurance Act, an employee who is unemployed for reasons related to COVID-19, and through no fault of their own (i.e. mandated work from home policies), will be eligible for unemployment benefits.

Should employers institute a temporary remote work/telecommuter policy for their entire workforce?

This answer is largely dependent on several individual factors relating solely to your company (e.g., industry, work force, area where workers reside, etc.). We have seen an increase in employers implementing such policies, however. For certain businesses and industries, telecommuting may be a good strategy for mitigating the illness through contact at work. Even if an employer does not does not implement a temporary work from home policy, employers should be prepared for an increase in inquiries about telecommuting from employees who prefer not to report for work (see guidance below on this specific issue). If an employee asks to work from home because of a medical condition that places him or her at higher risk for infection, an employer may be obligated to consider this request as a reasonable accommodation under the ADA or state law. Even where there is no legal obligation to provide accommodations, employers may find that allowing an employee to work from home is preferable to not having the employee work at all. Similarly, employers should examine their short-term disability policies, as they may provide benefits in the event the employee is unable to work.

In designing telecommuting policies and procedures, employers should first identify which jobs can be successfully performed outside of the office. Many jobs simply cannot be performed from home, and not all employers have the technology infrastructure or organization necessary to make working from home a productive option. Where working from home is permitted, employers should establish expectations for employees’ work and communications while they are away from the office. For example, these may include specified working hours, expectations for responding to calls and email, and productivity goals. Employers should also ensure that their employees have a medium available to accurately reflect their hours. In Illinois, for example, employers are required to maintain a record of all hours worked each day and each week for all workers, which as of February 19, 2019, now includes exempt employees.

If an employee refuses to report to work due to fear of contracting COVID-19, and the employer has no objective reason to believe that there is a sufficient basis for such a concern in its workplace, may the employer discipline or terminate the employee for refusing to come into work?

That depends largely on the reasonableness of the employee’s fear of infection in the workplace. Under the Occupational Safety and Health Act (“OSHA”), an employee may refuse to work if the employee believes that he/she is in imminent danger. Section 13(a) of OSHA defines imminent danger as “any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” This means that the employee must believe that death or serious physical harm could occur within a short time, for example before OSHA could investigate the problem. For a health hazard, such as COVID-19, to constitute an imminent danger under OHSA, there must be a “reasonable expectation that toxic substances or other health hazards are present and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

So, if an employee reasonably believes that there is a real danger of being infected with COVID-19 by coming to work, because of a confirmed and/or suspected case of COVID-19 in the workplace, it is likely that the employee would qualify for protection under OHSA from discipline or discharge. Satisfying this standard, however, would not entitle the employee to be paid for the time missed from work. Furthermore, even if the risk is not sufficient to trigger OSHA protections, if the employee’s level of fear, whether rational or not, results in or is a function of an anxiety disorder or a serious health condition for FMLA purposes, the employee may be entitled to time off as a reasonable accommodation for a disability under the ADA or as a protected leave of absence under the FMLA. Note too that Section 7 of the National Labor Relations Act protects employees (even in non-union settings) who engage in “protected concerted activity for mutual aid and protection.” A group of employees (or even one, on behalf of all others) who refuse to work based on their reasonable fear of being infected with COVID-19, likely will be protected from discipline or discharge for their attempt to improve the conditions of their employment.

What if local schools or day care centers have temporarily closed because of COVID-19, and an employee requests to take leave to stay home with his/her children during this time? Are employers obligated to provide this leave?

If the U.S. Senate approves the Families First Coronavirus Response Act, employers with fewer than 500 employees (as written now) would be required to permit eligible employees to take an FMLA leave of absence to care for their child (even if the child does not have a serious health condition), if the child’s school or place of care has been closed, or the children’s provider is unavailable due to a coronavirus. (See comprehensive summary of the Families First Coronavirus Response Act here).

State laws may impose different requirements. For example, California requires most employers to provide unpaid leave to parents, guardians, grandparents, stepparents, foster parents or persons standing in loco parentis to a child for child care during unexpected school closures. Similarly, New York City mandates that employers provide employees with leave necessitated by the “employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.”

Can employers discipline or terminate employees (or a single employee, speaking on behalf of others) who are using social media to identify their employer and complain that the employer is not protecting them or the workplace from COVID-19?

Generally, no, as the employee(s) complaints regarding working conditions likely constitute protected speech/concerted activity under Section 7 of the NLRA. Instead, employer should speak directly to the employee(s) regarding their concerns and try to address each individual concern, without taking retaliation action.

What if an employer temporarily shuts down a work location to protect its employees from COVID-19? Do we have to provide advance notice of the shut down, and if so, how much notice do we need to give our employees?

Yes, you likely do because temporary shutdowns of a facility may implicate federal and state “WARN” laws. Under the federal Worker Adjustment Retraining Notification Act (the “WARN Act”), employers with 100 or more employees are required to provide 60 days’ advance notice of a temporary shutdown if the shutdown will (i) affect 50 or more employees at a single site of employment and (ii) result in at least a 50 percent reduction in hours of work of individual employees during the month of the shutdown. However, 60 days’ notice is not required if the shutdown is a result of a “natural disaster” or “unforeseeable business circumstances.” Although the WARN Act does not specifically address whether a pandemic or potential pandemic qualifies as a natural disaster or unforeseeable business circumstance, the key factor for both is that the event was sudden, dramatic and not foreseeable within the required notice period. Employers should note that, even if these exceptions apply to the COVID-19 outbreak, the employer is still required to give as much advance notice as is practicable. Therefore, employers should be prepared to communicate to their employees that a temporary shutdown will occur as soon as the final decision has been made, even if the shutdown will not take effect for several days.

Additionally, many states including Illinois have “mini-WARN” laws that cover smaller employers or require notice for less significant shutdowns. For example, under the Illinois WARN Act, private sector employers that have (i) 75 or more full-time employees located in Illinois, excluding part-time employees; or (ii) 75 or more employees who work a total of 4,000 hours per week (exclusive of overtime hours), must provide 60 days’ advance notice in the case of a “mass layoff” or a “plant closing.” Under Illinois’ WARN Act, a “mass layoff” is defined as “a reduction in force which: (1) is not the result of a plant closing; and (2) results in an employment loss at the single site of employment during any 30-day period for: (A) at least 33 percent of the employees (excluding any part-time employees) and at least 25 employees (excluding any part-time employees); or (B) at least 250 employees (excluding any part-time employees.” And, under Illinois’ WARN Act, a “plant closing” is defined as “the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees excluding any part-time employees.” The 60 days’ notice exception under the federal WARN Act also is available to Illinois employers if the shutdown is a result of a “natural disaster” or “unforeseeable business circumstances.”

If an employer has a unionized workforce, is it required to bargain with the union over changes to unionized employees’ schedules or other changes to their terms and conditions of employment in response to COVID-19?

Under the NLRA, unionized employers may have a duty to bargain over new policies developed in response to COVID-19. For example, if employers develop a pay policy addressing whether and/or how to pay employees whom the employer has requested to work from home temporarily, or have been self-quarantined because of a positive test or are experiencing symptoms of COVID-19, that policy would likely be considered a mandatory subject of bargaining for which the employer would need to bargain over with the union. However, whether there is such a duty really depends on the language and specific provisions in the collective bargaining agreement, including but not limited to the management rights provision, leaves of absence, paid time off, and health and safety.

Can employers prohibit international or domestic travel to high risk locations?

So long as the travel is for business-related reasons, yes. If for personal reasons, then likely not, or face a potential national origin discrimination claim if the personal travel is to the employee’s home country. However, upon the employee’s return, particularly if the travel was to a high-risk location, and/or on the CDC’s restricted travel list, the employer should require the employee to stay home for the 14-day quarantine period and require a fitness for duty exam to return to work if the employee experiences any symptoms of COVID-19, has self-disclosed that while traveling he or she has come in close contact with another person who has tested positive for COVID-19, or the employee discloses that he or she has tested positive for COVID-19.

What if an employee returns from a domestic or international trip that is not on the CDC restricted travel list, can employers mandate a temporary self-quarantine?

You could, but you shouldn’t. Remember, decisions should be based on rational, objective evidence, and should not be impulsive or based on emotion or paranoia. Unless the employee, for example, is experiencing symptoms of COVID-19, has self-disclosed that while traveling he or she has come in close contact with another person who has tested positive for COVID-19, or the employee discloses that he or she has tested positive, there is no reasonable belief that the employee poses a direct threat to the health or safety of the workplace that cannot be eliminated or reduced by a reasonable accommodation.

As with any and all COVID-19 employment-related matters, employers should consult with their employment attorneys for discussing best practices in addressing individual situations.

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