By Bello Welsh LLP
Organizations are facing unprecedented challenges as the result of COVID-19. The virus’s impact on the workplace is significant and implicates a host of issues under employment law. Additionally, on March 18, 2020, the federal government passed a new law, the Families First Coronavirus Response Act (FFCRA), that imposes new obligations on employers.
Bello Welsh has previously published the following resources: Key Considerations for Employers Amid the COVID-19 Pandemic and Families First Coronavirus Response Act Signed into Law (FFCRA Summary), which provides a summary of the relevant provisions of the FFCRA. This Q&A document is intended to supplement those resources and answer additional questions that may arise. This document has been updated to reflect changes to the FFCRA enacted by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) as well some portions of the interpretive guidance issued by the Department of Labor, including its Families First Coronavirus Response Act: Questions and Answers (DOL Q&A), which itself continues to be updated frequently. We note that the guidance published as of March 29, 2020 may not have incorporated amendments implemented through the CARES Act.
Question 1: We may be forced to furlough, temporarily lay off, or permanently terminate employees as the result of economic conditions caused by COVID-19. Are we required to give advance notice or severance pay for terminations, or to pay employees on furlough or temporary layoff?
Answer 1: Generally, no, with a few caveats. First, if the action is a layoff or plant closing covered by the federal WARN Act or similar state or local law, advance notice (and in New Jersey severance) may be required. (See Question 9 below.) Second, if your workforce is unionized, the applicable collective bargaining agreements may impose contractual obligations. (See Question 11 below.) Third, employment agreements with executives and other employees may contain notice or severance requirements, particularly in connection with permanent terminations.
[New:] While severance and ongoing wage or benefit payment may not be required, many states require payment of final pay, including accrued unused vacation, at or shortly after the time of an employer-initiated termination. A “temporary layoff” or even a “furlough” may be considered a termination requiring such payout. (See Question 20 below.) Accordingly, employers are advised to carefully weigh the risks of deciding not to pay final pay at the time of a furlough or temporary layoff, and to consider alternatives to mitigate risk.
Question 2: The FFCRA gives employees new sick pay and paid leave entitlements. Who pays for these, employers or the government?
Answer 2 [Updated]: Employers must “front” the money by paying employees directly, but the amounts will be subsidized by the government in the form of a tax credit or reimbursement, specifically a credit against quarterly payroll tax payments (including withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees). If the payroll tax payments are not large enough to cover the credit, employers will be issued a refund. See our alert, FFCRA Summary, the DOL Q&A (nos. 15, 32-34), and this news release relating to expected joint IRS/Treasury/DOL Regulations for details.
Question 3: The FFCRA expands the reasons why employees can take leave under the Family and Medical Leave Act (FMLA). Do we need to worry about this if our organization is too small to be covered by the FMLA or if the employee doesn’t meet typical FMLA eligibility requirements?
Answer 3: Yes. The FFCRA has greatly expanded the scope of employers and employees covered by the new leave requirement. Note, however, that large employers with 500 or more employees are not covered by the public health emergency leave or sick pay requirements of the FFCRA. See our alert, FFCRA Summary, and the DOL Q&A (nos. 2-3), for details.
Question 4: Do we have to affirmatively notify employees of the new public health emergency leave and sick pay requirements of the FFCRA?
Answer 4 [Updated]: Yes. The FFCRA requires employers to post notice of the new leave requirements in a conspicuous location in the workplace where notices are customarily posted. The DOL has now published model posters (in English and Spanish) for this purpose. (Although the original text of the FFCRA only required notice to be posted for the new sick leave, and not the new public health emergency leave under the FMLA (E-FMLA), the DOL poster includes information on both.) Since many offices are closed and many employees are working from home, employers may email the notice to employees and post it on the organization’s intranet, if one exists, in addition to physical posting, or may directly mail the notice to employees. See the DOL Posting Q&A for additional details on the posting requirement.
Question 5: We already provide paid sick time to employees under company policy and state and local laws. Do we have to provide additional sick time under the FFCRA?
Answer 5: Yes. The new emergency paid sick time obligation is in addition to any paid sick time or other paid time off provided under employer policy, collective bargaining agreement, or other federal, state, or local law.
Question 6: Are employees who are on temporary layoff or furlough eligible to receive public health emergency leave pay (E-FMLA) or sick pay, assuming they otherwise meet the eligibility requirements?
Answer 6 [Updated]: No, the new paid leave/sick time is not required for employees who were put on temporary layoff or furlough before requesting any emergency leave or sick time. The new leave and pay entitlements are intended to protect those employees who are unable to work when an employer needs them, not employees on layoff. See the DOL Q&A (nos. 26-28), for details.
Question 7: We were considering a reduction-in-force to deal with economic conditions, and now we are especially concerned with the cash flow issues the new paid public health emergency leave and paid sick leave may cause for our organization. Would it violate the law for us to have a reduction-in-force earlier to avoid potential paid leave/sick time obligations under the FFCRA?
Answer 7: It is not clear whether the non-retaliation and related provisions in the FMLA and FFCRA would be construed to prohibit a layoff motivated by a variety of economic reasons, one of which may be the specter of potential cash flow problems caused by new FFCRA obligations. As such, it is risky to rely on the avoidance of FFCRA obligations as a reason for having or accelerating layoffs. Organizations also should not select specific individuals for layoff based on the likelihood that they will utilize the new paid public health emergency leave or paid sick time as doing so could violate anti-discrimination laws in addition to the FFCRA and FMLA.
Question 8: If we conduct a reduction-in-force for economic reasons, are we allowed to include those employees who are on public health emergency leave under the FMLA/FFCRA, or are they guaranteed reinstatement to their jobs?
Answer 8 [Updated]: The answer is not clear. Under existing FMLA regulations, if an employer can show that “an employee would not otherwise have been employed at the time reinstatement is requested” as the result of a reduction-in-force, then there is no reinstatement obligation. See 29 C.F.R. §825.216(a). However, the FFCRA contains an explicit exemption from reinstatement for small employers (with fewer than 25 employees) if the job no longer exists due to changed economic or other operating conditions that are caused by a public health emergency and impact employment, and certain other conditions are met. While this explicit exception for small employers could be read to mean that no such exception is available for larger employers, which would contradict existing FMLA regulations, the DOL’s guidance attempts to reconcile this apparent contradiction by stating that the conditions available for employers under 25 are in addition to existing FMLA standards. See the DOL Q&A (no. 43), for details. Regardless, it is advisable to consult with legal counsel if this situation arises.
As under the existing FMLA, it is clear that an individual may not be selected for termination, in whole or part, because the individual used or requested public health emergency leave or paid sick time under the FFCRA. Also, it should be noted that employees may not be subject to discrimination or retaliation if they filed any type of complaint or proceeding relating to the new laws, or have testified or intend to testify in any such proceeding. That does not mean that such individuals cannot be terminated, but it instructs that employment actions taken with respect to such individuals should be based on business purposes which in turn should be clearly documented.
[New:] Note that the DOL has now made clear that if a workplace is closed, either for economic reasons or because of business shut-downs ordered by state or local governments, the employer only needs to pay for the amount of sick/E-FMLA time taken by eligible employees before the closure. See the DOL Q&A (no. 25; see also nos. 23-24, 27), for details. In addition, the DOL has provided guidance on how to calculate the amount of sick/E-FMLA pay that is available to employees when the employer implements schedule reductions. See the DOL Q&A (no. 28), for details.
Question 9: How do I know if the federal WARN Act or similar state laws apply to our anticipated layoff or reduction-in-force?
Answer 9: The WARN Act is a very complicated statute, and legal counsel should be consulted if there is a possibility the law may be implicated. The WARN Act applies to employers with 100 or more employees (excluding some part-time and recently-hired employees) or who have 100 or more employees (including all part-time and recently-hired employees) who work at least 4,000 hours per week, exclusive of overtime. In general, if your organization is anticipating a temporary layoff, reduction-in-force, reduction in hours, or closing of a particular facility or operation that impacts the employment of 50 or more individuals, a more detailed WARN Act analysis is advised.
Massachusetts does not have a state analogue to the federal WARN Act. However, various other states, including but not limited to California, Illinois, New Jersey, and New York, have statutes similar to the federal WARN Act, and many apply to smaller employers and personnel actions impacting smaller numbers of employees.
Question 10: Does the WARN Act allow any flexibility in situations like this, where economic conditions are changing rapidly and unpredictably?
Answer 10: Yes. The federal WARN Act contemplates situations where the need for layoff was unforeseeable and it is hard to predict how long layoffs or reductions in hours may last. Even in such situations, however, WARN imposes very specific obligations on employers, and there are significant consequences for non-compliance. If it is possible that the WARN Act may apply to your employment action, legal counsel can help guide you through the WARN Act’s requirements and assist you in taking advantage of any flexibility available under the law. Note that state law requirements may differ from those in the federal WARN Act.
Question 11: Part of my organization’s workforce is unionized. Do we have special obligations with respect to any anticipated layoffs, closures, or reductions in hours?
Answer 11: Yes. You must review your collective bargaining agreement for specific provisions regarding seniority, layoff, recall, notice provisions and possibly other matters. Unions are sending out letters to employers reflecting that they expect employers to follow these provisions regardless of the crisis. There may also be an obligation to bargain about the impacts of layoffs. Experienced labor counsel can assist with reviewing relevant collective bargaining agreements and obligations before taking action.
Question 12: We are worried that some of our employees, specifically older individuals and those who have shared they have certain underlying health conditions, may be especially vulnerable to COVID-19, and we would like to help prevent them from being exposed. Can we offer these employees the opportunity to work from home without allowing other employees in similar positions to do so?
Answer 12: The best practice in this circumstance is to invite employees with particular concern about COVID-19 due to risk factors to raise the issue and to deal with concerns raised by employees on a case-by-case basis. However, if you wish to affirmatively reach out to employees in high-risk categories, be sure not to compromise the privacy of an employee’s medical information or make assumptions about an employee’s medical status beyond what the employee has disclosed to you. There is always the possibility, though, that the employees you affirmatively reach out to and/or those who may be in high-risk categories that you do not allow to work from home might contend that your actions were based on improper consideration of protected characteristics, such as age, disability or pregnancy.
For those employees who are required to work on-site, employers should take the steps recommended by federal, state, and local public health authorities to reduce transmission of COVID-19.
Question 13: Our organization generally does not allow certain employees to work from home, even as an accommodation of a disability, because we have determined that being in the office/worksite is an essential function of certain jobs. If we allow employees to work from home as the result of the public health emergency, are we compromising our ability to argue later that being at work is essential?
Answer 13: Do not let the impact on future disability accommodations drive your decisions about allowing work from home during the public health crisis. However, if you are concerned about future impact, be clear in all communications to employees that working from home is being allowed due to the extraordinary public health emergency even though many important aspects of people’s jobs cannot be performed remotely.
Question 14: Can we check the temperatures of all employees before allowing them to come in to work?
Answer 14: Yes. Now that COVID-19 has been declared a pandemic, guidance from the Equal Employment Opportunity Commission (EEOC) allows temperature checks for all employees. However, there are numerous practical considerations that should be resolved before undertaking this measure, including whether there is an employee who is trained to do the checks, has reliable equipment and can be safe in doing so; whether employee privacy can be protected in the case of a positive result; and whether a contingency plan exists to deal with excluded employees. It is also possible that state laws may diverge from the EEOC guidance, though that seems unlikely under the circumstances.
Question 15: Can I and should I tell other employees if we learn that someone with COVID-19 symptoms or a positive test was present at work, and should I exclude those other employees from the workplace for 14 days?
Answer 15: Many employers are choosing to notify “Tier 1” (direct) contacts of an employee who has tested positive for COVID-19 or was in close contact with someone who tested positive, and we believe that approach is permissible and potentially could be viewed as required under the Occupational Health and Safety Act (OSHA) in some circumstances. Given the current lack of availability of testing, making such notifications where the employee has symptoms but has not had a test may also be prudent. However, going further to second-level contacts (those in contact with Tier 1 employees) may not make sense absent additional information indicating risk of exposure. In making the notifications, employers should be careful to protect the privacy of the affected employee to the extent practical and must avoid seeking disability-related information from employees being notified. Temporary exclusion of employees who have tested positive or who have symptoms consistent with COVID-19 infection is both permissible and prudent. Employers should always follow the guidance of federal, state, and local public health authorities with respect to notifications.
Question 16: Can I require all employees returning from travel or other leave to fill out a questionnaire confirming that they are not a risk to the workforce?
Answer 16: Maybe, depending on the questions asked. Generalized questions that do not elicit disability-related or other confidential information are permissible. These could include asking the employee to confirm such things as that s/he is free of fever or other known COVID-19 symptoms, has not been in contact with a positive or presumed positive individual, and is not under an order or recommendation of quarantine.
Question 17: If an employee develops COVID-19, am I required to record the illness or report it to the Occupational Safety and Health Administration (OSHA)?
Answer 17: Maybe. Generally, 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. Although common colds and the flu are excluded from the obligation to record work-related illness, COVID-19 is not excluded. Accordingly, a confirmed case of COVID-19 is a recordable illness if a worker is infected as a result of performing their work-related duties, provided it requires medical treatment or days away from work (which is likely, unless the employee is asymptomatic and already working remotely). Moreover, if an employee who contracts COVID-19 at work later requires in-patient hospitalization, you must report the in-patient hospitalization to OSHA.
Of course, it may be difficult or impossible to know whether an employee’s infection actually resulted from their performance of work-related duties. That said, best practice would be to assume that if an employee develops COVID-19 after having had known contact with another employee who has a confirmed case of COVID-19, the incident should be recorded or reported, as applicable.
Question 18: Our organization is covered by the FFCRA. We have reduced a number of employees to part-time in response to the current situation, with some working only one day per week. Will those employees still be eligible for the paid public health emergency FMLA leave and paid sick time under the FFCRA, and if so, how much?
Answer 18 [Updated]: Yes, based on their scheduled hours. There is no minimum hours threshold to receive paid public health emergency FMLA leave or paid sick time under the FFCRA. The amount of paid sick time granted to part-time employees (defined as those working less than 40 hours per week) is not the full 80 hours, but rather the average number of hours the employee works over a two-week period. For public health emergency FMLA leave, pay is pro-rated based on the number of hours the employee would otherwise be regularly scheduled to work. If an employer has implemented a schedule reduction, and an affected employee is unable to work the new schedule due to sick time or E-FMLA qualifying reasons, they must be given leave based on the new schedule – the paid time off may not be used for the hours the employee is no longer scheduled to work. See the DOL Q&A (no. 28), for details.
If an employee does not have a regular schedule, the amount of E-FMLA leave pay is calculated based on the average number of daily hours over the six months preceding leave (or, for newer employees, the reasonable expectation of the employee at the time of hiring of the average number of hours that the employee would be normally scheduled to work).
Note that employees must have been employed for at least 30 days to be eligible for the E-FMLA. The CARES Act has amended the FFCRA to allow for coverage of employees who were terminated on or after March 1, 2020 and are reinstated if they worked 30 out of the 60 calendar days before the layoff. CARES Act § 3605.
Question 19: We have employees currently on furlough. If an employee is called in to work for a few days during the furlough period, does the employee become eligible to receive E-FMLA leave and paid sick time under the FFCRA?
Answer 19 [Updated]: Yes. However, the amount of pay would be pro-rated as described in Question 18.
Question 20: We are temporarily laying off employees. We don’t know how long the layoff will last, but we expect the employees will come back to work in the future. Do we need to pay out employees’ accrued, unused vacation at the start of the layoff?
Answer 20 [Updated]: State laws regarding the payout of accrued vacation vary, so be sure to check the law in all states where you are conducting temporary layoffs.
In Massachusetts, accrued vacation is considered a wage, and state law requires that “any employee discharged from . . . employment shall be paid in full on the day of his discharge.” M.G.L. c. 149, § 148. While this language could support the position that accrued vacation need not be paid in connection with a temporary layoff, as opposed to a permanent termination, the Massachusetts Attorney General’s Office very recently released COVID-19-related guidance to the contrary. This guidance states that “when an employee is temporarily laid off, they have a right to be paid all of their earned wages, including all accrued vacation pay, on that same day.” The Attorney General’s Office has indicated it will not take enforcement action for untimely payment of vacation pay if an employee being temporarily laid off voluntarily agrees to save accrued vacation for later use. However, the Attorney General’s Office notes that it does not have control of private litigation, and employees who agree to defer vacation payment now would technically still have the legal right to sue later.
Based on the Attorney General’s Office guidance, the conservative approach is to either pay employees accrued, unused vacation upon layoff (including temporary layoff) or allow the individual to voluntarily defer the payout, especially since Massachusetts wage laws provide automatic triple damages and attorneys’ fees for violations.
Question 21: Can employees use paid sick time under the FFCRA if we cannot provide them any work hours due to a government-ordered closure of non-essential businesses or a “stay-at-home” order?
Answer 21: The answer is not clear. Paid sick time under the FFCRA may be used if “[t]he employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.” The term “isolation order” could be read broadly to refer to stay-at-home orders and government-ordered business closures, or narrowly to refer to an isolation order specific to a particular individual, for example related to that individual’s actual or potential exposure to the virus. We will monitor for guidance on this point.
Question 22: Can our organization continue to provide medical and dental insurance to employees who are on furlough or temporary layoff?
Answer 22: Yes, as long as you follow the requirements of your insurance plans or the provisions of COBRA, as explained below. As a first step, you should check your insurance plans, as most contain a requirement that employees work a minimum number of weekly hours to be eligible for coverage. Insurance plans may also limit coverage for individuals who have been laid off, even temporarily. If your furloughed or laid off employees do not meet the technical eligibility requirements of the plans, you can request an exception from your insurer to maintain active coverage. We understand that insurers are being flexible in granting exceptions to eligibility requirements due to the unusual circumstances caused by the pandemic.
If your insurer does not allow you to maintain regular coverage for furloughed or laid off employees, then the COBRA law provides an alternative method to continue such coverage. COBRA notices should be issued to each affected individual, who will need to elect COBRA to continue coverage. Employees are typically permitted to elect COBRA for up to 18 months, far longer than expected layoffs. While individuals generally pay the full premium for COBRA coverage, employers may choose to pay some or all of the premium instead. If you do so, be sure to clearly communicate to employees any time limits or other restrictions on the premium payments the organization is willing to provide.
Note that small employers not covered by COBRA may be subject to state laws concerning continuation of health coverage, such as the Massachusetts mini-COBRA law.
Question 22: [New] Can employees take either sick leave or E-FMLA intermittently?
Answer 23: In some situations, yes. Specifically, current DOL guidance distinguishes between (1) sick time taken for reasons other than to care for a child whose school or childcare has closed or is unavailable for COVID-19 reasons and (2) either sick time or E-FMLA taken to care for a child whose school or childcare has closed or is unavailable for COVID-19 reasons. The former must be taken in full-day increments and continuously while the need exists, unless the employee is teleworking, in which case the time may be taken intermittently if agreed to by the employer, in any agreed increment. The latter may be taken intermittently if agreed to by the employer regardless of whether the employee is working at his or her regular place of employment or teleworking, again in any increment agreed by the parties. Finally, any sick time or E-FMLA that is not exhausted may be taken at a future time before December 31, 2020 (but additional paid leave is not available if an employee exhausts their leave and later experiences a new situation which otherwise would have been eligible for leave). See the DOL Q&A (nos. 21-22), for details.
 These links are for the private employer posters; federal employer posters are also available at the DOL’s COVID-19 site.
 We note that it appears the posters are still being updated, so employers may wish to check the linked page for the most updated version immediately before posting.
 The WARN Act does not identify a single point in time at which employer size is to be measured in all circumstances. If your organization is near the threshold size or has exceeded it in the recent past, it is advisable to do a deeper dive on whether the law may apply.