21 May Employer Obligations during COVID-19 Pandemic
The coronavirus disease 2019 (COVID-19) has rapidly altered daily life in the United States. Stay-at-home orders, according to the New York Times, have now been adopted by at least 37 states and the District of Columbia, and are estimated to affect at least eight out of every ten Americans. Due to the high exposure-risk the virus poses, stay-at-home orders encourage residents to leave home for essentials only, such as medication, groceries, or taking care of family.
Employers Must Ensure Workplace Health and Safety
Employers face a unique challenge as they must ensure workplace safety and protect the health of their employees during these unprecedented times. Because COVID-19 is spread by person-to-person contact, the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and state agencies such as the Wisconsin Department of Health Services, have published guidelines to ensure minimal exposure to the virus. Summarily, the guidelines encourage employers to: (i) promote frequent hand-washing and covering coughs or sneezes using the inner arm; (ii) provide tissue, hand soaps and sanitizers, and trash receptacles in the workplace; (iii) insist employees stay home if they are sick; (iv) consider implementing other temporary policies such as enforcing a six-feet distance between employees; and (v) properly clean and disinfect frequently touched surfaces. Employers are obligated to actively ensure their employees are healthy and the U.S. Equal Employment Opportunity Commission (EEOC) recently stated employers may even measure an employee’s body temperature during this time.
Employers’ Obligation to Notify Employees Regarding Closings and Layoffs
Employers are naturally concerned with the needs of their businesses, in addition to maintaining health and safety. Due to stay-at-home orders, many businesses are forced to temporarily close or lay-off employees. In the event a business needs to close or lay-off employees, that employer may need to adhere to business closing and mass layoff laws such as the federal Worker Adjustment and Retraining Notification Act (WARN Act), and similar laws in many states. Under the federal WARN Act, an employer with 100 or more full-time workers must ordinarily provide employees with a 60-day notice when doing business that affects 50 or more people or doing a mass layoff that affects 33% of its workforce. The WARN Act 60-day notice requirement has not been shortened due to COVID-19, and employers are still required to notify their employees during the pandemic. In Wisconsin, employers with 50 or more employees have a 60-day notice requirement. Employers should be aware of their obligations under the Federal and State Acts. The EEOC recommends that, even if the WARN Act does not trigger a notice requirement, employers should provide advanced notice of terminations, furloughs, lay-offs, and closings when possible.
Families First Coronavirus Response Act Expands Employees’ Rights
Employers who are not forced to close during this global pandemic may have additional obligations to their employees under the Families First Coronavirus Response Act (FFCRA), which expands paid sick leave and Family Medical Leave Act (FMLA) benefits. The FFCRA extends FMLA protection for COVID-19 related leave to encompass all employers with fewer than 500 employees. All such employers are required to post the FFRCA notice informing employees of their legal rights. The post should include the following information:
- Paid Leave Entitlements
- Eligible Employees
- Qualifying Reasons for Leave Related to COVID-19
The Department of Labor offers posters employers can download and print to fulfill the employee notification requirement.
Small Business Exception
Smaller employers with 50 or fewer employees may be excepted from the expanded FMLA if they can demonstrate that compliance “jeopardizes the viability of the business as a going concern.” This FFRCA exemption relieves a small business of the obligation to provide paid leave to an employee who requests leave due to school or childcare closures. To demonstrate that providing leave to care for a child jeopardizes the viability of the business as a going concern, a small business must document that: (i) providing the leave would result in expenses and financial obligations exceeding available business revenues; (ii) the absence of the employee would result in a substantial risk to the financial health or operational capabilities of the business due to the employee’s specialized skills, knowledge or responsibilities; or (iii) there are not sufficient workers who are able, willing and qualified, and who will be available to perform the labor or services provided by the employee requesting leave. The small business seeking an exemption should keep these documents, but not send them to the Department of Labor. Small businesses are still obligated to provide Emergency Paid Sick Leave under the FFRCA to employees who need leave because they are sick, they have been medically advised to self-quarantine, or they are caring for a person who is subject to a quarantine order.
Paid Leave Entitlements
The FFRCA requires employers to provide emergency FMLA leave to employees who have been employed for at least 30 calendar days, as opposed to the 12 months ordinarily required for FMLA leave. All leave under the FMLA is not paid, but rather paid leave under the Emergency FMLA is only for employees who must care for themselves or a child due to COVID-19 related reasons. Emergency FMLA leave is unpaid for the first 10 days of leave, and after the first 10 days, leave will be paid at two-thirds of an employee’s regular rate of pay for the number of hours the employee would otherwise be scheduled to work. All eligible full-time employees will have up to 80 hours of paid sick leave available to use. If an employee is taking paid leave under the Emergency FMLA, an employer must pay the employee the regular rate of pay, the federal minimum wage in effect under the Fair Labor Standards Act (FLSA), or the applicable State or local minimum wage. The employer does not have to pay the employee more than $5,110 over the entire paid sick leave period under the Emergency FMLA, contrary to the $12,000 an employee is paid under FMLA.
Moreover, the FFCRA prohibits employers from requiring employees to use paid leave as part of FMLA leave, and it allows COVID-19 leave to be deemed FMLA, job-protected leave if taken at any time through December 31, 2020.
Employers should also note that The FFRCA expansion of FMLA leave covers furloughed employees upon their return to work if the employee was previously employed for 30 or more days prior to their layoff. Employees are permitted under the Emergency FMLA to take leave intermittently. For example, if an employee only needs 4 hours per day of leave to care for his or her child, managers are expected to be flexible in scheduling employees whenever possible. Employers must continue employees’ health benefits during leave periods at the same level and under the same conditions as if the employee was still working. Employers, of course, may still make payroll deductions to collect the employee’s share of the premium. Lastly, employers should exert sincere effort to ensure employees who take Emergency FMLA leave are able to return to the same position or a position with equivalent status, pay, benefits, and other employment terms. However, if the employer can demonstrate that returning the employee to his or her position prior to the leave will cause substantial and grievous economic injury, they employer will bypass this return requirement under the Act. An employer may not discharge, discriminate, or discipline an employee who appropriately utilizes emergency paid sick leave under the Emergency FMLA. Paid sick leave under the Emergency FMLA will not be provided after December 31, 2020, as the law currently stands.
Qualifying Reasons for Leave Related to COVID-19
An employee is entitled to take leave related to COVID-19 if the employee:
- is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- has been advised by a healthcare provider to self-quarantine related to COVID-19;
- is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- is caring for an individual subject to a Federal, State, or local quarantine or isolation order, or subject to self-quarantine as advised by a healthcare provider;
- is a parent caring for his or her child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19 related reasons; or
- is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.
The Department of Health and Human Services have not identified any “substantially similar conditions” yet. The FFRCA also expands the definition of “parent,” which now includes step-parents or anyone who is responsible for the day-to-day care of a child or financially supports a child.
The unexpected twists and turns of the COVID-19 pandemic cannot be predicted, however, employers can find help navigating the quickly changing federal and state laws by actively checking the CDC updates and the websites for local state agencies. Helpful websites for employers during the pandemic:
- CDC Guidance for Businesses and Employers
- OSHA Guidance on Preparing Workplaces for COVID-19
- Department of Labor FFCRA Poster
- Iowa Novel Coronavirus Guidance
- Iowa Business and Organizations Helpful Links
- Wisconsin Department of Workforce Development Equal Rights COVID-19 Public Information for Employers
- Wisconsin Department of Health Services COVID-19 Business, Employers, and Workers Tips
This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.
© MWH Law Group LLP 2020. All rights reserved.
CONTACT ATTORNEY TRACI N. JENNINGS
Traci N. Jennings
Associate Attorney, Milwaukee – Beginning June 1, 2020
735 N. Water Street, Suite 610, Milwaukee, WI 53202
P: (414) 436-0353 / F: (414) 436-0354