by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Armando Rodriguez, Esq - Product Compliance Counsel,
April 28, 2020
As we all work to acclimate to the new normal that is the current COVID-19 world, state, local, and federal governments and agencies have been working tirelessly to respond to this unprecedented situation. Although we hope things will settle down soon, we have seen more developments in just the last few days.
Well don’t fret none, pardner: We’ve lassoed the most important news for you, which we will provide in two parts. Here is our roundup for today:
- More DOL Questions and Answers on the FFCRA
- USERRA and COVID-19-related military service
- California’s Executive Order providing paid sick leave to food
- Washington’s Proclamation requiring accommodations for
employee in COVID-19 high-risk categories
Saddle up and hold on – here we go!
More DOL FFCRA Questions & Answers. Every few days the DOL adds to its Questions & Answers addressing numerous issues employers face in trying to comply with the Families First Coronavirus Response Act. The latest release includes new Questions 80-88. Most of these (Questions 80-85) address how an employer is to calculate an employee’s hours worked and rate of pay, both crucial to determine the appropriate benefits payable to the employee. Various pay scenarios are addressed (e.g., salaried, hourly, variable hours). One answer with good news (85) explains that an employee’s rate of pay, which must be calculated based on pay over the prior six months, must only be calculated at the time of the employee’s first FFCRA leave usage, even if the employee uses the benefit intermittently over multiple weeks or months.
Our personal favorite question is 87, which addresses whether stay-at-home and shelter-in-place orders qualify as quarantine or isolation orders to entitle an employee to take leave under the FFCRA for reasons relating to one of those orders. (See also Question 60.) The answer is YES. To illustrate, the DOL provides the example of an employee who was on a cruise ship on which there was an outbreak of COVID-19 and then must be quarantined for 14 days after getting FINALLY disembarking, even though the employer has work for the employee.
A common challenge for employers is understanding when they can require an employee to use other paid leave benefits and when the employee gets to choose. Question 86 addresses this (as well as prior Questions 31-33). This gets complex so if you are struggling with this issue please read Question 86 in full. That said, here’s a quick summary:
- Paid sick leave under the Emergency Paid Sick Leave Act (EPSL) is in addition to any form of paid
or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement.
An employer may not require employer-provided paid leave to run concurrently with – that is, cover
the same hours as – paid sick leave under the EPSLA.
- If the employer and employee agree, an employer may supplement 2/3 pay under the Emergency
Family and Medical Leave Expansion Act (EFMLA) with other paid leave benefits so that the employee
may receive the employee’s normal compensation.
- Under EFMLA, an employer may require any paid leave available to an employee under the employer’s
policies that would also cover the EFMLA school closure leave reason (either specifically or generally)
to run concurrently with paid leave under EFML. The employer can top off the employee’s 2/3 pay to
full pay until the employee has exhausted available paid leave under the employer’s plan—including
vacation and/or personal leave (typically not sick or medical leave).
- In both cases (topping off EPSLA and EFMLA 2/3 pay), the employer may only obtain tax credits for
wages paid at 2/3 of the employee’s regular rate of pay, up to the daily and aggregate EPSLA or EFML limits.
- An employee may elect—but may not be required by the employer—to take any available paid sick leave
under the EPSLA or paid leave under the employer’s plan for the first two weeks of unpaid EFMLA, but not both.
- If an employee has used some or all paid sick leave under the EPSLA, any remaining portion of that
employee’s first two weeks of EFMLA may be unpaid, or the employee may choose—but the employer
may not require the employee—to use other paid leave available for the reasons under the employer’s policies.
The last new Question (88) warns employers that if the employer fails to pay an employee in accordance with the requirements of FFCRA, the employee can recover the full amount of wages that should have been paid under the FFCRA. What am I missing here? Pay me the amount owed as I take leave, or pay me the same amount later? Here’s the thing – once the DOL decides to investigate an employer for noncompliance with ANY of the laws under its jurisdiction the DOL has authority to investigate the employer’s compliance with pretty much everything it is responsible for (including FFCRA and FMLA and the Fair Labor Standards Act). You don’t want that. So not only is paying the wages as they are due under the FFCRA the right thing to do, it is also the prudent thing to do. And I’m not a wage & hour attorney, but I’ll bet there may be other things lurking, like paying interest and the employee’s attorneys’ fees.
We’ll be watching for more DOL FFCRA questions and answers – I have it on good authority the staff is working round the clock and I just in person submitted an unanswered question to my sources at the DOL today!
California Executive Order Protecting Food Sector Workers
On April 16, California Governor Gavin Newsom issued an Executive Order mandating a supplemental paid sick leave related to COVID-19 to “Food Sector” workers employed by employers with 500 or more workers. The Order covers a wide spectrum of workers under the title “Food Sector Worker” ultimately including everything from agricultural workers to food manufacturing, stopping just shy of food wholesalers and distributors. Specifically, the Order provides sick leave in the following limited instances:
- When a worker is unable to work due to federal, state, or local quarantine or isolation orders due
- When the worker is advised to self-quarantine or self-isolate by a health care provider due to
COVID-19 related concerns; or
- When the worker is sent home by the employer over concerns of possible COVID-19 transmission.
Workers who are scheduled for 40 hours a week, or who have worked 40 hours per week in the two weeks prior to taking the leave, are eligible for 80 hours of leave, while workers who do not
work 40 hours are eligible for a prorated leave based on average hours worked over the past 6 months. The rate of pay matches the emergency paid sick leave provisions of the Families First Coronavirus Response Act (FFCRA), with caps of $511 per day and $5,110 in total per employee.
The Executive Order is in effect from April 16 for the duration of any state-wide stay-at-home orders issued by the State Public Health Officer. A Food Sector Worker who has commenced the supplemental paid sick leave prior to the termination of all stay-at-home orders may complete the necessary leave.
Washington State Proclamation Protecting High-Risk Workers
On April 13, Washington Governor Jay Inslee issued a COVID-19-related Proclamation regarding workers at high risk, as defined by the Centers for Disease Control and Prevention. Specifically, the Proclamation protects employees who are at a heightened risk for complications with COVID-19, as defined by the CDC, by prohibiting all employers from failing to provide accommodations to high-risk employees. In essence, this proclamation provides ADA-esque protection to those who meet the CDC definition of being high risk for COVID-19, such as age 65 or older and having serious health conditions. Employers must first try to keep high risk employees working by providing alternative work assignments, including but not limited to telework or remote work locations, when possible. If alternative work assignments are not possible, the employer must allow the employee to take leave as an accommodation, free from risk of adverse employment action, using any accrued leave, or, if exhausted, unemployment insurance at the discretion of the employee. Additionally, should the employee exhaust paid leave while on an accommodated leave, the employer must maintain employer-provided health benefits until the employee is deemed eligible to return to work.
The Proclamation is in effect from April 13 through June 12, 2020, unless extended.
DOL Guidance Regarding Reemployment of Service Members under USERRA
The Department of Labor released a COVID-19-specific fact sheet with regard to the Uniformed Services Employment and Reemployment Rights Act. This fact sheet does not create new rights or obligations under USERRA; rather it addresses specific scenarios to ensure uniform application of USERRA in the context of the pandemic. The fact sheet provides the following important information:
- National Guard members or Reservists called to duty under federal authority are covered
- National Guard members called to duty under state authority are not covered under USERRA.
That being said, the service member may be entitled to protection under similar state statutes.
In addition, authority over National Guard members called to duty may shift from state authority
to federal authority depending on circumstances.
- Service members can be furloughed or laid off upon return from uniformed service if it is reasonably
certain that the service member would have been furloughed or laid off even if he or she had not
been absent for uniformed service.
- An employer cannot delay reemploying a service member due to concerns that the service member
had been deployed to a COVID-19 high risk area. When reemploying an infected or potentially exposed
service member, an employer must make reasonable efforts in order to qualify the returning employee
for his or her proper reemployment position. This can include temporarily providing paid leave, remote
work, or another position during a period of quarantine before placing the individual in his or her
proper reemployment position.
For more information on the details of National Guard service, see National Guard Assists Response to the COVID-19 Pandemic published by the National Conference of State Legislatures.
Rest up, y’all – here is what we have in store for you after the break:
- More ADA guidance from the EEOC – yes, they really have new stuff to say
- OSHA – employer obligations to provide a safe workplace
- COVID-19 lawsuits – here they come!
- Cityscape – what are municipalities doing?
And watch for your personal invite to our next webinar, where we will dig into all this good stuff!
With this blog post we welcome a new contributor, Armando Rodriguez. Armando has been with Matrix Absence Management since 2017 and previously served as a Claims Examiner Supervisor. We are delighted to welcome Armando to the Compliance & Legal team as he finishes law school and moves toward a legal career. Armando’s experience in Operations as an examiner and supervisor makes him uniquely qualified to provide realistic compliance guidance to Matrix, our clients and all of you!