In a decision issued on June 15, 2020, the U.S. Supreme Court held in the case of Bostock v. Clayton County that Title VII of the federal Civil Rights Act of 1964 prohibits employment discrimination against individuals on the basis of their sexual orientation or transgender status.
By Bello Welsh LLP
On June 4, 2020, the Senate passed the Paycheck Protection Program Flexibility Act of 2020. It has already passed the House, so it now goes to the president for signature. The primary changes are as follows:
- The period in which employers must spend the funds has been extended from 8 weeks to 24.
- The amount that must be spent on payroll has been dropped, from 75% to 60%.
- The language of the bill suggests that if less than 60% of the funds are spent on payroll there will be no loan forgiveness at all. This obviously is a very important development, which we hope will be made clear when related Rules are published. In the meantime, however, it is very important to track the PPP expenditures to make sure that at least 60% are dedicated to payroll expenses.
- The amount of loan forgiveness will be determined without regard to a proportional reduction in the number of full-time equivalent employees if the employer is able to document that:
- it is unable to rehire individuals who were employees on February 15, 2020; and
- it is unable to hire similarly qualified employees for unfilled positions on or before December 31, 2020; or
- it is unable to return to the same level of business activity as the business was operating on or before February 15, 2020, due to compliance with requirements established or guidance issued by the Secretary of Health and Human Services, the Director of the Centers for Disease Control and Prevention, or the Occupational Safety and Health Administration during the period beginning on March 1, 2020, and ending December 31, 2020, related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID–19.
- Borrowers who do not get full forgiveness will have 5 years to repay the loans, instead of 2.
As always, we will keep you informed of developments.
On May 19, 2020, the Occupational Safety and Health Administration issued revised guidance for when employers are required to record cases of COVID-19. As before, COVID-19 is a recordable illness if:
- The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention;
- The case is work-related; and
- The case involves one or more of the general recording criteria set forth in OSHA regulations.
Until now, however, most employers have not been required to expend significant efforts to determine whether a COVID-19 illness was work-related and, therefore, recordable; only employers of workers in the health care industry, correctional facilities, and emergency-response providers were obligated to make work-related determinations. For more information about prior OSHA guidance, see our prior Alert.
This will change on May 26, 2020, after which all employers who are required to keep OSHA injury and illness logs must determine if a worker’s confirmed COVID-19 case is job-related. OSHA recognizes that these determinations may be inherently difficult, stating “Given the nature of the disease and community spread… in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” In light of this, OSHA will assess employers’ efforts in making these determinations based on the following criteria:
- The reasonableness of the employer’s investigation into work-relatedness. Employers will not be expected to undertake extensive medical inquiries. Rather, it will be sufficient in most circumstances for an employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he or she believes the virus was contracted; (2) while respecting employee privacy, to discuss work and out-of-work activities that may have led to the COVID-19 illness; and (3) to review the employee’s work environment for potential exposure, which should be informed by any other instances of workers in that environment contracting COVID-19 illness;
- The evidence reasonably available to the employer at the time it made its work- relatedness determination; and
- The evidence that a COVID-19 illness was contracted at work. Evidence that may weigh in favor of or against a determination that a COVID-19 illness was contracted at work includes:
- COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if his or her job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- An employee’s COVID-19 illness is likely not work-related if he or she is the only worker to contract COVID-19 in the employee’s vicinity and job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- An employee’s COVID-19 illness is likely not work-related if the employee, outside the workplace, closely and frequently associates with someone (g., a family member, significant other, or close friend) who: has COVID-19; is not a coworker; and exposes the employee during the period in which the individual is likely infectious.
An employer who cannot determine whether it is more likely or not that workplace exposure played a causal role with respect to a COVID-19 illness is not required to record that COVID-19 illness. Of course, the employer must continue to respond appropriately to protect workers, regardless of whether a case is determined to be work-related.
The revised guidance followed weeks of uncertainty about whether and how employers are required to determine work-relatedness, during which period both employers and workers’ rights organizations have pushed for clarity.
On May 18, 2020, the federal Department of Labor, Wage and Hour Division issued a final rule that expands the types of industries that may be able to take advantage of the overtime pay exemption for certain employees paid primarily on a commission basis. Specifically, the Fair Labor Standards Act (FLSA) includes an exemption from the obligation to pay overtime to employees who work more than 40 hours in a workweek if they work for a “retail or service establishment,” are paid at least 1.5 times the applicable minimum wage, and receive more than half of their total earnings for a representative period in the form of commissions. The term “retail or service establishment” is defined to mean establishments 75% of whose annual dollar volume of sales of goods or services (or of both) is not for resale and which are recognized as retail sales or services in the particular industry. Under long-standing Division regulations, some industries were identified as having “no retail concept” (29 CFR § 779.317), and this list was considered in determining which industries could not claim the exemption, while the WHD deemed that others “may be recognized as retail” (29 CFR § 779.320), and therefore could avail themselves of the exemption if the other requirements were established. Now that the DOL has withdrawn both lists, employers in a wide variety of industries—from accounting firms to laboratory equipment dealers to sign-painting shops to those selling window displays—should consider whether they may fit the definition of “retail or service establishment” and therefore can take advantage of a newfound flexibility in compensation for certain employees.
Over the last eight months, the DOL has issued several new final rules interpreting the FLSA, including:
- Updating guidance for determining joint employer status (January 16, 2020, available here);
- Changes to the calculation of the “regular rate” so that certain kinds of compensation no longer have to be factored into an employee’s rate for purposes of determining their overtime rate of pay (December 16, 2019, available here); and
- And, as we previously explained, updating the earnings thresholds for employees exempt under the administrative, executive, learned professional and “highly compensated employee” exemptions (issued September 24, 2019, effective January 1, 2020, available here).
Of note, the withdrawal made public on May 18th has immediate effect, without any notice and comment period or other delay.
 Certain retail or service establishments may be exempt from the FLSA altogether if they do not meet minimum thresholds for sale of goods or services in interstate commerce. 209 U.S.C. § 203(s), 29 CFR § 779.337.
By Bello Welsh LLP
- What safeguards should employers consider implementing to protect employees (and customers, visitors, and vendors) after state and local authorities allow non-essential businesses to reopen?
- Develop an infectious disease preparedness and response plan
- Identify a workplace coordinator responsible for COVID-19 issues
- Identify which workers, customers, individuals may be exposed (or transmit), or where within the work place such exposure/transmission may occur
- Develop contingency plans
- Increased rate of worker absenteeism
- Need for social distancing, staggered work shifts, and other exposure-reducing measures
- Need to modify existing supply chains
- Actively encourage sick employees to stay home
- Review policies and consider implementing new policies (see Q&A 13, below) to make sure that policies and practices are consistent with public health recommendations, as well as applicable laws
- Support respiratory etiquette and hygiene
- Increase environmental cleaning and disinfection
- Maintain a healthy work environment (for example, improving building ventilation systems)
- Does fear of contracting COVID-19 justify an employee’s refusal to work on-site?
An employee’s fear about contracting the virus will not typically justify a refusal to work, unless the fear is related to a serious health condition. In that circumstance, the employee could be eligible for traditional FMLA leave subject to the normal notice and certification process, but only if the underlying condition would independently be eligible for FMLA leave.
That said, while not likely, an employee could refuse to work if he/she has a good faith, reasonable, and demonstrable fear that they are in “imminent danger” of immediate death or serious physical harm. According to OSHA and as applicable to COVID-19, the following conditions must be met before a hazard becomes an imminent danger:
- There must be a threat of death or serious physical harm. “Serious physical harm” means that a part of the body is damaged so severely that it cannot be used or cannot be used very well.
- For a health hazard 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. The harm caused by the health hazard does not have to happen immediately.
- The threat must be immediate or imminent. 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 and remedy the situation.
There also is the potential that employees could cite to the protections for “concerted” activity as a basis for refusing to work. Section 7 of the National Labor Relations Act (NLRA) extends broad-based statutory protection to employees who engage in “protected concerted activity for mutual aid or protection.” This protection, which applies in both union and non-union environments, include circumstances in which two or more employees act together to improve their employment terms and conditions and could encompass situations where employees participated in a “concerted refusal” to work in unsafe conditions. If this situation presents itself, we strongly recommend consulting legal counsel before taking any action.
- Can an employer discipline or terminate an employee who refuses to report to work from a generalized fear of contracting COVID-19?
Generally, an employer may discipline or terminate a worker who refuses to work (or return to work). While in ordinary circumstances this would be deemed a resignation and disqualify the individual from receiving unemployment benefits, it remains to be seen how unemployment agencies will handle such cases in the context of COVID-19.
- Does the previous answer change if the employee refused to return to work for one of the reasons identified in the “CARES” Act that provides eligibility for unemployment benefits?
Probably not. Eligibility for unemployment is a distinct issue from the right to discipline or terminate an individual. The Coronovirus Aid, Relief, and Economic Security Act (“CARES Act”) provides for Pandemic Unemployment Assistance (“PUA”) for individuals who certify that they are otherwise able and available to work (within the meaning of state law), but are unemployed, partially unemployed, or unable or unavailable to work for a wide range of reasons related to COVID-19. For more information about expanded eligibility for unemployment benefits under the CARES Act, please see our Alert dated March 30th on this topic. That said, employers should consider the practical “fall-out” from terminating an individual in such circumstances in terms of employee relations, social media about the company, and the like.
- What if the employee refuses to return to work because he or she is in a high-risk group, such as over the age of 65 or with an underlying health condition?
This is a complex subject as it requires balancing obligations and rights in a way that is highly dependent on the facts of the situation. In the case of an underlying health condition, an employer would be required to explore reasonable accommodations for an employee who refuses to report to work because of a health condition that meets the definition of a “disability.” In accordance with EEOC guidance, accommodations could include: increasing distancing or installing barriers that reduce the chances of exposure; elimination of marginal job duties; temporary transfers to a different position; or modifying a work schedule or shift assignment. Employers may also choose to place an end date on the accommodation. An employer may also grant an accommodation on a temporary basis until, for example, government recommendations on social distancing are relaxed. These situations are highly fact specific, and you should consult with legal counsel if this type of scenario presents itself.
- Can employees insist that they be allowed to continue working remotely?
In most circumstances, no. There could be situations, however, where an employer would need to consider work from home as a reasonable accommodation for a “disability” under the ADA or applicable state law. To date, neither the EEOC nor the Massachusetts Commission Against Discrimination has provided guidance as to whether either would consider COVID-19 to be a “disability,” in and of itself. It is likely that there will not be a single answer to this question, and it may well depend on the severity and longevity of the COVID-19 infection for an individual. Again, if this situation presents itself, you should consult legal counsel before taking action.
- May employers implement health screening protocols before allowing employees to return to the workplace?
Yes, to determine whether those entering the workplace would pose a direct threat to health in the workplace. Appropriate health screening protocols may include asking about symptoms, taking workers’ temperature, and conducting or requiring COVID-19 tests.
Symptom screening: Employers may ask all who enter the workplace whether they have exhibited COVID-19 symptoms. When asking about specific symptoms, employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease.
Temperature taking: Although measuring an employee’s body temperature is generally considered to be a prohibited medical examination, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
Employers that decide to take the temperature of those entering the workplace should consider various related logistical issues, such as: what type of device to use; who will be the temperature taker; what type of protective equipment should the temperature taker wear; and how to protect the health and confidentiality of the employees being tested.
COVID-19 testing: Yes. Although a COVID-19 test will be deemed a “medical test” and therefore it must be “job related and consistent with business necessity,” the latest guidance from EEOC is such tests are permissible.
Employers of course should ensure that the tests are accurate and reliable. For example, employers should review guidance from the FDA about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates.
Employers may also ask that employees have a COVID-19 test taken elsewhere, with the results presented to the employer before entering the workplace. The employer will be required to pay for the test.
Antibody testing: There is no specific guidance yet regarding whether an employer can take or require an antibody test, although ultimately, as the science around antibody testing develops, this is likely to be subject to the same standard as a COVID test. At this time, however, there remains substantial medical debate about whether the presence of COVID-19 antibodies means that the person with the antibodies is immune and, if so, how long the immunity lasts. And, although the FDA has approved certain antibody tests under its “emergency use” authority, as of yet, these tests have not been subject to rigorous validation studies. Further, the presence of antibodies does not rule out that the individual with antibodies has a current COVID-19 infection. Given the uncertainty, we recommend caution in this area, and further consultation before implementing this form of testing.
For information about maintaining the confidentiality of the results of health screenings, see Q&A 11 and 12, below.
- May an employer who implements health screening protocols before allowing employees to return to the workplace limit the screening protocols to high-risk individuals?
Likely no. Limiting screening to individuals who otherwise are protected by anti-discrimination laws, such as individuals over a certain age, who are pregnant, or who have underlying medical conditions, will be viewed by the EEOC and similar state agencies as unlawful discrimination.
- If an employee has symptoms of COVID-19 such as a fever, chills, or other symptoms recognized by the CDC or other governmental health authorities, can an employer send the individual home and when can they return to work?
Yes. Although an employee has a fever or other symptoms common to COVID-19, employers may (and should) send the employee home.
Current CDC guidelines indicate that individuals with COVID-19 who have self-isolated may leave isolation after having no fever for 72 hours without the use of fever-reducing medication, other symptoms have improved, and 7 days have passed since symptoms first developed. The most common period of time before an individual should return to work is, therefore, 14 days. We are unaware of any guidance from the CDC that directs how long an individual should self-isolate after having a fever but experiencing no other symptoms of COVID-19.
- May employers discipline employees who fail to follow employer-imposed safety policies/guidelines (including refusing to allow health screening)?
Yes, but of course discipline should be implemented in a manner unrelated to any protected status. For example, an employer may not discipline a “high-risk” individual (i.e., an older worker or one with an underlying medical condition) who refuses to follow safety guidelines, but not respond in a similar manner to an employee engaged in the same conduct who is deemed “low risk.”
- May an employer maintain records relating to health screening and, if so, how should these records be maintained?
Employers may- and should- maintain records of health screenings, including an employee’s statement that they have or suspect they may have the disease, or the employer’s notes or other documentation from questioning an employee about symptoms. However, as is required under the ADA, all medical information about a particular employee should be stored separately from the employee’s personnel file, and access should be limited.
- May an employer disclose the name of a worker who tests positive for COVID-19?
The answer to this is complicated, as the ADA and FMLA both prohibit the disclosure of information regarding the medical condition or history of an employee. Accordingly, many advisors recommend that employers disclose that a co-worker or visitor to the workplace has tested positive or been exposed to COVID-19 without disclosing any identities.
This unfortunately can conflict with efforts to control the potential spread of COVID-19. It is important from a public health perspective that those who have been in close contact with a person infected with COVID-19 be given sufficient information so they can take precautions to minimize the risk posed to themselves and others with whom they have close contact. We recommend that an employer seek permission from an infected individual to disclose his or her identify; if permission is refused, the employer should consider whether the public health benefit outweighs the risk. Consulting with legal counsel in such situations is strongly advised.
An employer also should ask an employee who has tested positive for COVID-19 for a list of all individuals with whom he or she came into contact in the workplace over the prior 14 days, as well as office areas and shared spaces visited. The fact that another individual has potentially been exposed should then be disclosed to anyone in the workplace who may have had contact with the infected individual, or who may have visited the same spaces within the offices over the prior few days (without necessarily disclosing the identity of the infected individual).
- What policies should employers consider implementing or updating as employees begin to return to the workplace?
Employers should review current policies and practices and/or implement new policies and practices, consistent with public health recommendations and applicable laws, relating to the following topics:
- Sick leave.
- Flexible work arrangements. This includes alternate worksites (telework), hours (staggered shifts), and meeting and travel options.
- Health and workplace safety standards, including physical layout (separating work-spaces to maintain distance), environmental controls, and personal protective equipment.
- Stagger scheduled breaks and presence in common areas (cafeterias).
- Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship?
In general, an employer does not have to provide a reasonable accommodation if doing so poses an “undue hardship,” which means “significant difficulty or expense.” However, it is becoming clear that this concept, which has been interpreted narrowly and strictly by the EEOC and courts, will be applied more flexibly in the COVID context. The EEOC itself has published guidelines reflecting that an accommodation that would not have posed an undue hardship outside of the pandemic may pose one now. For example, EEOC has reflected that it may be significantly more difficult now to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Similarly, EEOC has noted that it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. Also, prior to the COVID-19 pandemic, the EEOC and courts typically found that most accommodations do not pose a significant expense when considered against an employer’s overall budget and resources. But, even the EEOC concedes that the sudden loss of some or all of an employer’s income stream because of this pandemic is now relevant, as are the availability of discretionary funds. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.
By Bello Welsh LLP
The Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide (1) up to 80 hours of paid sick leave to any employee who is unable to work for any of six enumerated reasons, and (2) up to twelve weeks of leave (of which ten weeks are paid) to any employee who has been employed for at least 30 days, in order for the employee to care for a child whose school or daycare has closed or whose childcare provider is unavailable. Our prior client alert provides a detailed overview of the fundamental requirements of the Emergency Paid Sick Leave Act (EPSLA) and expanded FMLA (E-FMLA) leave entitlements. In recent days, the United States Department of Labor (DOL) has issued regulations and expanded its Q&A’s to provide additional clarification regarding several aspects of how the leaves are to be administered. Following up on our prior set of Q&As, this document addresses some of the questions that employers may be facing as they create processes and policies to comply with the new laws.
Question 24: Are there constraints on the qualifying reasons for leave pursuant to the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?
Answer 24: Yes. The DOL regulations provide detailed descriptions of the circumstances under which leave may be taken, which are important for employers to understand when evaluating leave requests. For example, the regulations provide that an employee may take leave only if the employer has work for the employee, and the employee would be able to perform work (either at the normal workplace or by telework) but for the reason for leave. Additional clarifications include the following:
Emergency Paid Sick Leave Act (EPSLA): Paid sick leave may be taken for one of six qualifying reasons.
- The employee is subject to a government-issued “quarantine or isolation order” related to COVID-19. This includes quarantine, isolation, containment, shelter in place, or stay at home orders issued by any government authority that causes the employee to be unable to work, as well as a government advisory that categories of citizens, such as those of certain age ranges or with certain medical conditions, should shelter in place, stay at home, isolate, or quarantine.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. This encompasses a health care provider’s advising an employee to self-quarantine not only because the provider believes the employee has or may have COVID-19, but also where the provider believes the employee is “particularly vulnerable” to COVID-19.
- The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider. The relevant symptoms include fever, dry cough, shortness of breath, or any other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention.
- Importantly, leave taken for this reason is limited to time the employee is unable to work because the employee is taking “affirmative steps” to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19. Thus, while an employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis, the employee need not actually have received a diagnosis to be eligible for time off for this reason if, for example, the time is needed to try to get tested, or if the employee is continuing to experience symptoms while awaiting results and is unable to telework while the employer has work for the employee. (In addition, if the employee exhibits COVID-19 symptoms, and seeks medical advice, but is told they do not meet the criteria for testing and is instead advised to self-quarantine, the employee may be eligible for leave under the second reason for EPSLA leave, described above, provided the employee meets all the requirements spelled out above.)
- The employee is caring for an individual who is subject to a government quarantine or isolation order related to COVID-19, or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. While the use of the term “individual” in the statute could be interpreted as effectively limitless, the regulations clarify that the term refers to an immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined. The leave also is not available if the individual in fact does not depend on the care.
- The employee is caring for his or her son or daughter whose school or place of care has been closed for a period of time, or the child care provider is unavailable, for reasons related to COVID-19. An employee may take leave for this purpose only if no other suitable person (such as a co-parent, co-guardian, or the usual child care provider) is available to care for the son or daughter during the period of such leave.
- The definitions here are intentionally broad. For example, “place of care” includes not only daycares, but also before and after school care programs, summer camps, and respite care programs, among others, while a “child care provider” includes any individuals who provide childcare on a regular basis, whether paid or unpaid, licensed or unlicensed, including babysitters, extended family and neighbors. In addition, a school or place of care is considered “closed” if the physical location is closed, even if the school or place of care has moved to online or similar instruction models.
- The regulations do not specify how an employer would determine whether another suitable person is “available,” but presumably employers may inquire and accept the employee’s response. In an apparent discrepancy, the regulations relating to required documentation require that in seeking such leave, the employee must represent that no other suitable person “will be caring” for the child. Employers may wish to include both phrases in any documents used by employees to request leave.
- As we discussed in our initial client alert regarding these regulations, employees must provide certain specific information regarding the child and the school or care provider at issue. While, as noted above, an employee may qualify for leave only if another suitable individual is not “available,” the employer is required to obtain and maintain a record of the employee’s representation that no other suitable individual “will be caring” for the child. In addition, the IRS guidance on documentation required for the associated tax credit provides that, as to children over the age of 14 where time off is sought during daylight hours, the employee must provide a statement that special circumstances exist requiring the employee to provide care. The regulations do not provide guidance on how employers are to determine whether someone else is “available” or “caring” or what “special circumstances” may be or to what extent they must be described or verified. At a minimum, it is recommended that these items be included in any paid sick leave request form.
- The employee has a “substantially similar condition,” as specified by the Secretary of Health and Human Services (HHS). To date, HHS has not identified any “substantially similar condition” that would allow an employee to take leave for this purpose.
Emergency Family and Medical Leave Expansion Act (E-FMLA)
As discussed in our prior client alert, the E-FMLA provides that an employee may use E-FMLA leave if the employee is unable to work or telework due to a need to care for the employee’s son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The requirements for taking leave for this purpose are the same as the requirements for taking such leave pursuant to the EPSLA.
Question 25: Can a small business seek a hardship exemption from the EPSLA and E-FMLA, and if so, what is the process for doing so?
Answer 25: Yes, but the exemption is limited, and available only to employers with fewer than 50 employees, if providing leave to employees to care for a son or daughter whose school or place of care is closed or unavailable would jeopardize the viability of the business as a going concern. There is no such exemption from the need to provide EPSLA leave for reasons 1-4 or 6 (described above). To be eligible for this exemption, an authorized officer of the small business must have determined that one of the following conditions exists (and must document that determination and retain the documentation):
- the leave would result in the small business’s financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity;
- the absence of the employee(s) requesting such leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
- there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the work of the employee(s) requesting leave, and such work is needed for the small business to operate at a minimal capacity.
Employers should carefully consider whether a leave request would in fact result in one of these narrow circumstances occurring. For example, a request by a junior level employee for intermittent E-FMLA one day per week is unlikely to preclude the business from operating at minimal capacity or create a substantial risk to its finances or operations, even in a relatively small business. (See also our Q&A for Employers #22, discussing intermittent leave.)
Question 26: How does an employer determine if it has fewer than 500 employees, for purposes of coverage under the EPSLA and E-FMLA?
Answer 26: Employers must count all full-time and part-time employees employed within the U.S. (including the District of Columbia and all U.S. territories and possessions), measured at the time the employee would take leave. This includes all current employees regardless of tenure, employees on leave of any kind, employees of temporary placement agencies who are jointly employed by the employer and another employer, and day laborers supplied by a temporary placement agency.
Of note, an employer that implements a “furlough” under the FFCRA may still be obligated to count those employees for purposes of determining employer coverage if the terms of the job action make it more akin an unpaid leave than a to a layoff. However, such furloughed employees would not be entitled to take EPSLA or E-FMLA leave for any time when no work is available to them (e.g. during the furlough).
A corporation is typically considered a single employer, and all of its employees within the U.S. should be counted together regardless of their location. Two or more entities are generally separate employers, unless they meet the joint employer test under the FLSA or the integrated employer test under the FMLA, in which case, the employees of all entities making up the joint or integrated employer must be counted.
Question 27: The EPSLA and E-FMLA provisions of the FFCRA apply to employers with fewer than 500 employees. What date is used for purposes of determining the 500-employee threshold?
Answer 27: The temporary regulations provide that the 500-employee threshold is determined as of the date an employee needs to take leave. Therefore, if an employer that currently has more than 500 employees goes below the 500-employee threshold while the FFCRA is in effect (through December 31, 2020), for example as a result of layoffs due to the COVID-19 pandemic, the employer will be subject to the FFCRA as of the date its headcount falls below 500.
For example, if an employer has 525 employees on April 30, 2020, and one of its employees is unable to work starting on that date because s/he has been advised by a health care provider to self-quarantine due to COVID-19 concerns, the employer will not be required to provide paid leave under the FFCRA to that employee. If, however, the employer lays off 25 employees on May 1, 2020 and another 25 employees on June 30, 2020, the employer will be required to provide paid leave to another employee who is unable to work for the same reason starting on July 1, 2020. Under current DOL guidance, an employer that drops below the 500-employee threshold would not be required to provide leave retroactively to an employee who did not qualify at the time leave would have started but whose leave, if available, would have been in effect on the date the employer begins to be subject to the FFCRA. Conversely, an employee who qualifies for and goes out on leave is entitled to the full amount of leave even if the employer’s employee headcount goes above the threshold during the leave.
Question 28: Do the usual FMLA job restoration regulations, including the exception for employers that are able to demonstrate that an employee would not otherwise have been employed at the time s/he requests reinstatement, apply to employees who take E-FMLA leave under the FFCRA?
Answer 28: Yes. Employers subject to the E-FMLA are also subject to the usual FMLA job restoration obligation, and therefore must restore any employee who has taken E-FMLA leave to the same or equivalent position at the end of the leave. The temporary regulations track the existing FMLA regulations by providing that the FFCRA does not protect an employee from employment actions, such as layoffs, that would have affected the employee regardless of whether leave was taken. The employer also has the same burden to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.
As to employers with fewer than 25 employees, the FFCRA includes an additional exception to the job restoration obligation, which appears to impose a greater obligation on small businesses. As per the FFCRA, such small employers are excluded from the job restoration obligation if the position no longer exists when an employee seeks to return from E-FMLA leave because of an economic downturn or other conditions caused by a public health emergency (i.e., due to COVID-19 related reasons), although the employer must attempt to contact the employee if an equivalent position becomes available in the next year.
Question 29: Do the 80 hours / 2 weeks of paid sick leave available under the EPSLA for caring for a child whose school or childcare is closed or unavailable due to COVID-19 cover the first 10 days of unpaid leave under the E-FMLA?
Answer 29: Yes, if the employee has not previously used EPSL for other reasons, the first two weeks of E-FMLA may be paid as EPSL (up to 80 hours), regardless of whether this is more or less than 10 workdays for the employee in question. Of note, however, the pay available through EPSL is capped at 80 hours, regardless of the employee’s regular hours of work in an average workweek, whereas the pay available through E-FMLA for the remaining 10 weeks does not have an hours cap. Therefore, full-time employees who regularly work more than 80 hours in a two-week period will not recover pay for their full hours of work through EPSL, but their full hours of work must be taken into account when determining E-FMLA pay.
Question 30: Can an employee take EPSLA or E-FMLA leave for periods of time that work is not available to that employee, for example if the employee’s hours have been reduced or if the employee’s place of work has temporarily closed due to COVID-19 related government orders?
Answer 30: No. EPSLA and E-FMLA leaves are only available when the employer has work for the employee, which the employee is unable to perform due to a qualifying reason. For example, an employee whose hours of work were reduced by the employer from 5 days to 3 days per week because of a COVID-19 related business downturn may not take either EPSLA or E-FMLA leave to cover the 2 days the employee is no longer scheduled to work, and an employee whose workplace has closed (and who cannot work from home) also may not take EPSLA or E-FMLA leave for any reason.
Question 31: If a new hire took EPSLA or E-FMLA leave with their prior employer, do they get the full amount of leave entitlement at my company?
Answer 31: No. Each individual is only eligible for 2 weeks of EPSLA leave and 12 weeks of E-FMLA leave total between April 1, 2020 and December 31, 2020, regardless of where they are employed at the time they take leave. This also suggests that the non-retaliation provisions apply regardless of whether the individual took leave at a prior employer. Because employers may only receive tax credits for payments made pursuant to the FFCRA, employers should consider inquiring about prior EPSLA and E-FMLA leave use on any employee leave request form to avoid paying out leave for which the employer will not be reimbursed.
Question 32: How do we calculate EPSL or E-FMLA pay to an employee who regularly works overtime? What if the employee works some shifts for which the employee is paid a shift differential?
Answer 32: For pay under both the EPSLA and E-FMLA, the employer must determine the employee’s “average regular rate.” First, the “regular rate” is determined by taking the employee’s pay over a six-month period, excluding the amounts specified in Section 7(e) of the Fair Labor Standards Act, such as gifts, vacation or holiday pay, expense reimbursements, discretionary bonuses, and premium pay for overtime (that is, the additional 0.5x of pay). Second, the “average regular rate” is determined by taking a weighted average based on the number of hours worked over the 6-month period (or, if the employee has not been employed for 6 months, then over the entire term of employment). That rate is then used to calculate pay during leave covered by the EPSLA and the E-FMLA.
In the case of an employee who is paid based solely on a single hourly rate, the average regular rate for purposes of the EPSLA and E-FMLA is simply the employee’s usual hourly pay rate. This is so regardless of whether the employee regularly works and is paid overtime because overtime premiums are not included in the calculation of the average regular rate.
In the case of an hourly employee who is sometimes paid a shift differential, the average regular rate must include not just the usual hourly rate, but also the shift differential. Accordingly, the regular rate is determined by taking the employee’s total pay (including shift differentials paid but not including the premium portion of overtime pay or other excluded amounts) and dividing this by the total hours of work (including overtime hours). This results in a (weighted) average regular rate, and it is this rate that is used to calculate pay during paid time off, rather than, for example, the rate that would apply to the hours or shift for which the employee takes leave.
 In addition, public employers are subject to the FFCRA regardless of size, as follows: the sick leave provisions apply to the federal government, federal agencies, and state and local governments, while the extended family leave provisions apply to non-federal public agencies, and federal employees covered by Title I or Title II of the FMLA.
 An employer of a health care provider or emergency responder may elect to exclude such employee from these leave provisions.
 The term “son or daughter” includes the employee’s own biological, adopted, or foster child, stepchild, legal ward, or child for whom the employee is standing in loco parentis (i.e., someone with day-to-day responsibilities to care for and financially support the child), under the age of 18. The term also includes an adult son or daughter who is incapable of self-care because of a mental or physical disability.
By Bello Welsh LLP
On April 10, 2020, the Occupational Safety and Health Administration (“OSHA”) issued enforcement guidance, limiting employers’ obligation to report employees’ COVID-19 illness. As we noted in our prior Employer Q&A (#17), ordinarily an illness is recordable if the illness is contracted as a result of the employee performing their work-related duties, and if it requires medical treatment beyond first aid or days away from work. Moreover, under earlier OSHA guidance, it was explicit that COVID-19 should not be treated like the seasonal flu, which is not subject to reporting obligations. Since COVID-19 was not otherwise excluded, employers were obligated to determine whether any employee who ended up testing positive for COVID-19 had contracted it as a result of their work-related duties. Under this newly-issued guidance, OSHA will not require employers (other than employers of workers in the healthcare industry, emergency response organizations of healthcare providers and first responders), to make work-relatedness determinations of COVID-19 exposure, except where:
- There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
- The evidence was reasonably available to the employer. For purposes of [the enforcement] memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.
Prior guidance made no such limitation or presumption, but instead referred employers back to regulations directing that “work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment.”
By Bello Welsh LLP
The Massachusetts Attorney General’s Office, Fair Labor Division, has updated its list of Frequently Asked Questions About COVID-19, including an expanded response to the question of whether an employer that conducts a temporary layoff must pay final pay—including accrued vacation—at the start of the layoff (now numbered Question 3). The AG’s original response reflected that when an employer conducts a “temporary layoff,” accrued vacation is due at the start of the layoff. The revised response adds that if an employer takes an action that is intended to continue the employment relationship, for example instituting a “furlough” in which health and other benefits are maintained, the AG will not consider this to be a discharge for purposes of the Wage Act, and accrued vacation pay will not be due at the start of the furlough. However, if an employer becomes unable to continue contributions toward employee benefit plans, this will be deemed a discharge, triggering the employer’s obligation to make full payment on the next regular pay day.
In short, in this revised response the AG draws a distinction between a “temporary layoff,” in which the employment relationship is severed (even if temporarily) and another action (sometimes called “furlough”) in which the relationship continues to some degree. Regardless of what nomenclature is used, employers considering reductions should be aware of the AG’s position on this issue.
The revised FAQ document contains several other new items, including references to paid sick leave and emergency FMLA under the FFCRA (which we discuss here, here and here), high level descriptions of the CARES Act (which we discussed here, here and here) and information for independent contractors. The FAQ also highlights certain state-specific relief available to small businesses, including a fund run through the Mass Growth Capital Corporation and disaster assistance loans.
Of interest for employers, these new and revised FAQs confirm that the Massachusetts Earned Sick Time Law is a separate benefit, and that employers may not require employees to use sick time under the Massachusetts statute (or other employer-provided paid leave) before using the new federal paid sick time entitlement.
By Bello Welsh LLP
On April 4, 2020, the Department of Labor published Unemployment Insurance Guidance Letter (“UIPL”) 15-20, which includes implementing and operating instructions for the Federal Pandemic Unemployment Compensation (“FPUC”) Program provided for as part of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act of 2020.
In short, the FPUC Program provides eligible individuals with $600 per week in addition to the weekly benefit amount they receive from certain other unemployment compensation programs, including CARES Act programs such as the Pandemic Unemployment Assistance (“PUA”) program (applicable to self-employed individuals and independent contractors) and Pandemic Emergency Unemployment Compensation (“PEUC”) (extended benefits).
Importantly, any individual who is eligible to receive at least one dollar ($1) of underlying benefits for the claimed week will receive the full $600 FPUC. FPUC is payable for weeks of unemployment beginning on or after the date on which the state enters into an agreement with the Department of Labor. In states where the unemployment benefits week ends on a Saturday, the first week for which FPUC may be paid is the week ending April 4, 2020, provided an agreement was in place no later than March 28, 2020. In states where the unemployment benefits week ends on a Sunday, the first week for which FPUC may be paid is the week ending April 5, 2020, provided an agreement was in place no later than March 29, 2020. FPUC is not payable for any week of unemployment ending after July 31, 2020.
Individuals are only entitled to benefits if they are no longer working through no fault of their own, and remain able and to work. Quitting work without good cause to obtain additional benefits under the CARES Act qualifies as fraud.
As with regular unemployment compensation, states will decide eligibility for FPUC based on eligibility for the underlying program; claimants do not have to separately apply for FPUC. Also states, not employers, are required to notify potential eligible individuals of their entitlement to FPUC.
By Bello Welsh LLP
As described in detail in our prior Alert, the federal government signed into law the Families First Coronavirus Response Act (FFCRA) to help workers impacted by the current COVID-19 health emergency. Under the FFCRA, employees of businesses of fewer than 500 employees may be eligible for paid sick leave or paid family leave under certain COVID-19-related circumstances.
There are two types of paid leave available under the FFCRA—emergency paid sick leave and emergency paid family and medical leave (“E-FMLA”). Click on the links for a summary of the Department of Labor’s guidance and for Q&A.
Emergency Paid Sick Leave Act (“EPSLA”)
EPSLA leave is available to all employees, regardless of tenure. Employees are eligible for this leave if they meet one of the following conditions:
- They are subject to a federal, state or local quarantine or isolation order related to COVID-19;
- They have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- They are experiencing symptoms of COVID-19 and are seeking a medical diagnosis;
- They are caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine;
- They are caring for a child because the child’s school or place of care is closed or the child’s care provider is unavailable due to a public health emergency; or
- They are experiencing 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. No such specifications have yet been published.
If there is work available for an employee, but that employee cannot work (either in the office or remotely), that employee is entitled to EPSLA. Importantly, an employee’s entitlement to and use of paid sick leave may not be used to reduce or eliminate any other right or benefit to which the employee is entitled under any law, collective bargaining agreement, or employer policy that existed prior to April 1, 2020 (the effective date of the FFCRA). In other words, EPSLA cannot count against an employee’s balance or accrual of any other source or type of leave. Moreover, employers and eligible employees may agree (where Federal or state law permits) to have paid leave supplement EPSLA pay so that the employee receives up to the full amount of his or her normal pay. EPSLA leave also cannot be used retroactively – the law does not establish any right or entitlement to be paid for any unpaid or partially paid leave taken before April 1, 2020, even if that leave was taken for one of the six qualifying reasons listed above.
Emergency Family and Medical Leave Expansion Act (“E-FMLA”)
This leave is available to all employees who have been employed for at least 30 calendar days (including, in certain instances, rehired employees). An employee is eligible for up to twelve weeks of E-FMLA leave if he or she is unable to work (either at the employer site or remotely) in order to care for a child because the child’s school or place of care is closed or because their child’s childcare provider is unavailable due to the public health emergency (reason #5, above).
E-FMLA benefits run concurrently with EPSLA leave. This means that if an employee takes two weeks of EPSLA leave to care for a child (under reason #5), the employee would be eligible to take an additional ten weeks of paid E-FMLA leave. If, on the other hand, the employee took EPSLA leave for one of the other qualifying reasons, he or she would still be eligible for up to twelve weeks of E-FMLA leave; however, the first two weeks of the E-FMLA leave would be unpaid, unless the employee had accrued paid leave that could be used during that period. If accrued leave was available, the employer and employee may agree to allow the employee to use accrued paid leave during that two-week period.
Thereafter, for the remaining period of E-FMLA leave, the employee may choose, and the employer may require, that accrued leave be used concurrently with E-FMLA leave. In that instance, the employee must be paid the full amount to which he or she is entitled under existing paid leave laws or policies for the period of leave taken, up to 100% of regular pay (and the employer may claim the tax credit available under the FFCRA, even if the paid time off comes from the employee’s accrued leave bank). If accrued leave is exhausted before the end of the E-FMLA benefits period, the employer must pay at least the required E-FMLA amount (which is capped at $200 per day).
Importantly, employees are only entitled to a total of twelve weeks of FMLA leave per the employer’s FMLA year, including E-FMLA, so if an employee has already taken some or all of his or her FMLA leave, their available E-FMLA leave will be reduced by the amount taken. An employee is still eligible for the two weeks of paid sick leave, however, even if he or she has taken all twelve weeks of FMLA leave.
E-FMLA benefits will end on the earlier of the date on which the public health emergency ends or the employee receives full benefits under these laws.
 Of note, while the covered individuals are not limited to family members, the preamble to the DOL regulations states that “paid sick leave may not be taken to care for someone with whom the employee has no personal relationship. Rather, the individual being cared for must be an immediate family member, 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 self-quarantined or was quarantined.”
 While the E-FMLA statutory text specifies that the child must be under 18 years of age, the EPSLA does not have this limitation, and both laws refer to the definition of “son or daughter” under the FMLA, which includes not only children under 18, but those over 18 who are incapable of self-care because of a mental or physical disability. The DOL has decided to interpret the E-FMLA and the EPSLA consistently with the FMLA.
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