Coronavirus Update

ELS Update

3/18/2020

The Coronavirus (COVID-19) pandemic is causing unprecedented disruptions to business operations on a global scale. If you have not already established a plan regarding your workforce, you are advised to do so now, before the government does it for you. Immediately identify key decision makers and employee communication protocols.

  • Phase 1 – Mitigation & Assessment (no imminent threat) We have passed this phase!
  • Phase 2 – Remedial Measures (Community Outbreak)
    • Evaluate and consider additional changes to sick leave policy and other applicable paid leave policies
    • Flexible Scheduling
    • Contingency Staffing Plan- identify critical personnel
    • Supply Chain Shortages
  • Phase 3 – Emergency Measures (Quarantine/Temporary Shutdowns)
    • Create plan for orderly shutdown of affected areas/portions of business operations and potential safety issues
    • Identify when additional environmental cleaning is necessary and appropriate; identify vendors
    • Identify backup work locations for critical personnel
    • Implement Emergency Payroll Policies
    • Return to Work Process
    • Security of Property and Assets During Shutdowns

The Coronavirus (COVID-19) pandemic is causing unprecedented disruptions to business operations on a global scale. As of March 17, 2020, U.S. Coronavirus numbers:

  • Total cases: 4,226
  • Total deaths: 75
  • Jurisdictions reporting cases: 53 (49 states, District of Columbia, Puerto Rico, Guam, and US Virgin Islands)

All companies need to assess their workforce, take time to identify issues and personnel critical to the continued operation of their business in the near-term.

Employment Issues to Consider

Coronavirus is a severe upper respiratory illness that is likely a “serious health condition.” which means it will likely be covered even under the current Family and Medical Leave Act (presuming other statutory conditions are met such as having the requisite number of employees, the required number of hours worked, etc.).  This will allow an employee to take leave if the employee becomes ill.

With people who are covered under The Americans with Disabilities Act (ADA), medical examination restrictions are more relaxed during the case of a pandemic. This was declared by the Centers for Disease Control and Prevention (CDC) or state or local public health authorities (see EEOC guidance, https://www.eeoc.gov/facts/pandemic_flu.html).  This allows employers to request relevant medical information from employees during a pandemic. This may include asking employees to disclose the reasons for an absence, asking if they or their family members have symptoms, and requiring temperature checks at facilities. These measures must be based on legitimate business circumstances and be reasonable in light of the current health situation.

Direct Threat

Employers are also generally required to keep the workplace safe. Therefore, if a person is reasonably thought to carry the Coronavirus and poses a direct threat to the workforce, then the employer may require this person to be medically examined prior to being allowed to work.  If an employee tests positive for Coronavirus, an employer can require that the employee in question disclose this information to his or her employer before returning to work to ensure there is not a direct threat issue for the workforce. 

However, remember that employers must still comply with federal and state law prohibitions on discrimination; for example, it would not be acceptable to conduct body temperature checks on all of your Asian employees on the basis of their race or national origin.

Furloughs, Layoffs, Reduced Hours & Closing Business Functions

Possible furloughs, layoffs (temporary or permanent), reduction in hours and closing business functions are serious considerations for all employers.  There are many issues to consider when making decisions regarding the above. Below are just a few.  Please contact an employment lawyer to discuss your specific business situation.

  1. Is there a difference between furlough, reduction in force (RIF), and layoff?
    • All three of these terms describe actions that are intended to achieve cost savings by reducing a company’s payroll costs.
    • Even though the words have been used interchangeably, their true meanings are quite different.
  2. What is the effect of furloughs or reduced hours on exempt v. non-exempt workers?
    • Exempt employees under federal law and most state laws must be paid the same minimum salary for each pay period.
    • Non-exempt workers can be paid for the hours they work.
  3. Impact on health benefits when worker hours are reduced? COBRA notification?
    • Yes, reduced hours or layoffs can have a significant impact on health benefits.
  4. Are furloughed employees entitled to unemployment benefits?
  5. If the employer has to furlough or temporarily lay off employees, are there any notification requirements?
    • Maybe.
  6. Is there an exception to WARN for epidemics?
    • Maybe.
  7. If we avoid Fed WARN, do employers still need to comply with state mini-WARN statutes?
    • Yes. Employers must comply with both the federal law and state laws; the most favorable to employees.

Possible changes to the FMLA- Families First Coronavirus Response Act (FFCRA)

The Families First Coronavirus Response Act (H.R. 6201) includes a number of public health measures, but also several specific provisions relating to paid leave that are of direct interest to private employers. The bill has passed the House (3/14/2020) and now heads to the U.S. Senate for consideration this week 3/16-20/2020.  While final legislative action has not been taken and any law enacted may vary from this summary, the situation is rapidly evolving and employers should be aware that these and additional responsive measures may be implemented in the very near future.  If passed by the Senate, these provisions would go into effect 15 days after enactment. 

Paid and unpaid leave for coronavirus-related reasons

Employers must take note of the three provisions related to employees being forced to miss work because of the COVID-19 outbreak: (1) an emergency expansion of the Family Medical Leave Act (FMLA), (2) a new federal paid sick leave law, and (3) expanded unemployment insurance benefits.

Emergency Family And Medical Leave Expansion Act (provisions may change)

  1. Expanded Coverage And Eligibility – The Act significantly amends and expands the FMLA on a temporary basis.
    • Current: employee threshold for coverage is employers with 50 or more to
    • Proposed: employers covering any workplace with fewer than 500 employees.
    • Proposed: lowers the eligibility requirement such that an employee who has worked for the employer for at least 30 days prior to the designated leave is eligible to receive paid family and medical leave.
      • thousands of employers not previously subject to the FMLA must provide job-protected leave to employees for a COVID-19 coronavirus-designated reason.
  2. Reasons For Emergency Leave 
    1. Any individual employed by the employer for at least 30 days (before the first day of leave):
      • may take up to 12 weeks of paid, job-protected leave to allow the employee to:
        • comply with a requirement or recommendation to quarantine due to exposure to, or symptoms of, coronavirus;
  • to care for an at-risk family member who is adhering to requirement or recommendation to quarantine due to exposure to, or symptoms of, coronavirus; or
  • to care for the employee’s child if the child’s school or place of care (including if the childcare provider is unavailable) has been closed due to a public emergency

3. Paid Leave – The first 14 days of Emergency FMLA may be unpaid,

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

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

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

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

Summing It Up

Assuming the FFCRA becomes law, it will provide paid sick leave to workers that wouldn’t have otherwise had access to it.  Stay tuned!  Please contact an employment lawyer to help walk you through the legal changes occurring daily regarding the coronavirus (COVID-19) and employment.

Information compiled from the following resources:

https://www.natlawreview.com/article/mandatory-paid-sick-leave-expected-us-senate-takes-covid-19-legislation

https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/furloughlayoffreductioninforce.aspx

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific-groups%2Fguidance-business-response.html

https://www.barbizmag.com/news/employers-should-make-coronavirus-preparations-now/