DOL PROVIDES MORE GUIDANCE ON KIDS’ SUMMER PROGRAMS AND FFCRA PAID LEAVE

Posted On June 30, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 30, 2020

 

On Friday we posted a legislative update covering the status of pending leave of absence bills throughout the states. This post comes right on the heels of that so if you didn't see it, just scroll down below this post or click here to check on happenings in the states where you do business.

COVID’s not gone, but leave of absence news has slowed to a manageable pace.  The latest update from the Department of Labor is much-needed guidance on how an employee can establish entitlement to paid leave under the Families First Coronavirus Response Act (FFCRA) when their child’s summer care program is closed.  After all, many parents had not yet made summer child care plans when COVID-19 became a thing earlier this year.  On June 26, the DOL addressed this issue in Field Assistance Bulletin No. 2020-4.   (FABs are written by the Office of Regulations and Interpretations to provide guidance in response to questions that have arisen in DOL field operations.)

As a refresher, FFCRA provides certain paid leave for an employee who is unable to work or telework due to a need to care for a child if the child’s school or place of care has been closed or the child care provider is unavailable for reasons related to COVID-19: 

  • The Emergency Paid Sick Leave (EPSL) provisions of FFCRA require employers with 1-499 employees to provide up to 2 weeks/80 hours of paid leave at 2/3 the employee’s usual salary (up to $200 per day, $2000 total).
  • In addition, the Expanded Family and Medical Leave (EFML) provisions require the same employers to provide up to 12 weeks of FMLA leave.The first 2 weeks of such EFML is unpaid (covered instead by the EPSL) and the remaining 10 weeks (or as much as is taken) is paid at 2/3 the employee’s usual salary (up to $200 per day, $10,000 total).

In FAB 2020-4 the DOL reviews the basic principles already established with respect to “school closure” leave under the FFCRA.  A “place of care” is a physical location in which care is provided to an employee’s child while the employee works.  The term includes summer camps and summer enrichment programs.  An employee requesting leave due to a school closure must inform the employer of, among other things, the name of the child, the name of the school or place of care that closed due to COVID-19, and a statement that no other suitable person is available to care for the child.  

Identifying the place of care.  When an employee needs leave due to the closure of a summer program the requirement is the same:  The employee must name the specific summer camp or program that would have been the place of care for the child had it not closed. 

However, unlike regular schools or day care centers, many summer programs closed in response to COVID-19 before any children were in attendance or even before the program commenced enrollment.  As a result, it can be challenging to identify the place the child would have attended but for COVID-19.  Although absolute proof is not required, a parent’s mere interest in a place of care is not enough.  Rather, the parent needs to show that, more likely than not, the child would have attended the specific place now closed.    

According to the DOL, the requirement to identify the program that would have been the child’s place of care but for COVID-19 can be satisfied in various ways.  The simplest is to show that the parent had applied to, submitted a deposit for, or enrolled the child in the program before it was closed. 

The parent can also show that the child attended the program in prior summers and was eligible to attend in 2020.  A child’s attendance at a camp or program during the summer of 2018 or 2019 may indicate that the same program would have been the child’s place of care during summer 2020 as long as the child is still eligible.  For example, a child who previously attended a camp for children ages 12 and under would not be eligible if the child is now 13 in 2020, so the closure of that camp would not be a basis for school closure leave to care for that child.  Moreover, the DOL says the attendance must be fairly recent, so if a child hasn’t attended a program since 2017 that won’t establish, without more, that it is “more likely than not” the child would have attended that program in 2020.

Reduced capacity at the planned place of care that results in no space for the employee’s child will also be considered a “closure” if the parent can otherwise establish that the child would have attended that program.

The DOL recognizes that there cannot be a one-size-fits-all rule to establish that a child, more likely than not, would have attended a specific summer place of care but for a COVID-19 closure.  While actual enrollment or recent prior attendance are valid considerations, neither is required and other factors may be shown.  A parent’s delay in making plans due to uncertainty in whether a specific place would be open, the child attaining an age of program eligibility, or being on a wait list in case the program reopens could all be indicators of a specific summer program the child more likely than not would have attended.

Two more points to remember.  First, for other types of schools or day care providers, the regular rules still apply.  If, for example, the child’s school is usually in session more than the typical 9-10 months per year, the actual closure of the physical place may still support paid leave and job protection under EPSL and EFML.  Same for the unavailability of a usual day care provider such as a nanny, neighbor, or family member. 

Second, it is not clear whether this kind of evidence of an employee’s need for school closure leave will be sufficient to qualify the employer’s FFCRA payments for the tax credits.

For more information.  If you need a refresher on the FFCRA you can review our prior blog post summarizing the act here.  We’ve had many FFCRA updates and have covered other COVID-19 issues in the last several weeks, so just scroll through the blog or search for “COVID” or your state to catch up.  

For more information regarding the school closure paid leave and expanded FMLA, see the DOL’s FFCRA Questions & Answers, particularly Questions 66-70 and 93 – or search the document for “school” to find all related questions and answers.  

STILL WRANGLING COVID-19 NEWS – ERISA, ADA, FFCRA, AND NY

Posted On May 15, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

May 15, 2020

 

Cowboy Radar

 

Every time I think I can write about something other than COVID-19, along comes another new law, regulation, or interpretation that I want to share with you. The roundup seems to be getting smaller, but the rodeo ain’t over yet, pardner. Saddle up, ’cause here are the latest:

ERISA Extensions of Disability Filing Deadlines

There are new deadlines in town. The Employee Benefits Security Administration (Department of Labor) and the Internal Revenue Service (Department of the Treasury) have issued a rule providing beneficiaries of certain ERISA plans with extra time to meet filing deadlines. Extensions are in place with respect to disability plans for claimants to file an initial claim for benefits and to appeal an adverse benefit determination.

ERISA rules do not provide a specific minimum timeframe that must be allowed for an individual to file an initial claim for disability benefits. See 29 C.F.R. § 2560.503-1. Rather, the timeframe is set by the plan. Now, a plan’s deadline for initiating a claim must be extended by the “Outbreak Period” explained below.

For adverse benefit determinations, the regular ERISA rules provide that a disability benefits plan must allow at least 180 days to appeal. 29 C.F.R. § 2560.503-1(h). This period too is now extended by the Outbreak Period.

The President declared a national emergency on March 13, 2020. For purposes of the new ERISA rules, this National Emergency is deemed to have started on March 1, 2020. The “Outbreak Period” is the time from March 1, 2020, until 60 days after the announced end of the National Emergency or such other date announced by EBSA and the IRS in a future notice. Counting to identify the deadline for an initial claim or an appeal of an adverse benefits determination must “disregard” the Outbreak Period. In other words, the time for filing is tolled for the duration of the Outbreak Period.

Here are some examples. For purposes of these examples we need an announced end date of the National Emergency and we will use April 30, 2020. The Outbreak Period ends 60 days later, on June 29.  

Example 1: Marie becomes disabled on March 15 and her employer’s disability plan allows her 30 days to file an initial claim for benefits, or until April 14 under the terms of the plan. However, since her disability occurred during the Outbreak Period, her 30 days to file a claim does not start until June 30. Marie has 30 days from that date, or until July 30, to file her claim.

Example 2: Donnie receives notification of an adverse benefit determination from his employer’s disability plan on January 28, 2020. The notification tells Donnie he has 180 days within which to file an appeal. However, the Outbreak Period is disregarded in calculating this 180 days. Donnie’s last day to file an appeal is 148 days after June 29 (180 minus the 32 days from January 28 to March 1), which is November 24, 2020.

This new rule applies retroactively. Because no time from March 1, 2020, through the end of the Outbreak Period counts toward a filing or appeal deadline, plan administrators will need to review any claim or appeal denials that occurred on or after March 1, and reverse any denial that is solely based on the claimant’s failure to meet the claim filing or appeal deadline.

What is Matrix doing? We are on top of this and ready to comply with the new deadlines. Specifically,

  • Matrix is implementing the new deadlines immediately for clients
    with self-funded ERISA disability plans
  • We are updating our denial letters to reflect the new information about
    the deadline to file an appeal
  • We will conduct an audit of ERISA claim denials and appeals upheld
    since March 1 for adverse determinations based on late filing and take
    steps necessary to correct those determinations.

If you have any questions, please contact your Matrix or Reliance Standard account manager.

NOTE: The new ERISA rules also affect claims for life and health benefits, health plan enrollment, and post-employment continuation of health coverage (COBRA). The Final Rule and supporting materials are available here: Final Rule, FAQs, and EBSA explanation of extensions.

 

ADA Guidance – The EEOC Continues Its COVID-19 Updates

Every few days the EEOC adds some new questions to its Technical Assistance Questions and Answers regarding COVID-19 and the ADA. The latest set provide guidance regarding employees with medical conditions that the Centers for Disease Control have identified as “high risk” – meaning that an individual with one of these conditions is at higher than average risk of developing severe illness from COVID-19. The conditions include chronic lung disease, moderate to severe asthma, serious heart conditions, compromised immune systems, severe obesity (body mass index [BMI] of 40 or higher), diabetes, chronic kidney disease, and liver disease. The EEOC addresses ADA issues and high-risk individuals in its new Questions G.3, G.4, and G.5. [Persons age 65 and older and those living in a nursing home or long-term care facility are also classified as high risk by the CDC but these are not ADA-protected disabilities.]

Individuals with high-risk medical conditions may request an accommodation to reduce the risk of exposure to COVID-19. As with all ADA requests, the employee does not need to mention the ADA or the word accommodation specifically, but merely has to make the employer aware that she needs a change in her work situation due to a medical condition. The employer may then ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship,that can be provided. Question G.3.

An employee with a high-risk disability who has never needed an accommodation may now need one as a result of the pandemic:

  • Due to a changed work environment, location, equipment, schedule, etc., and/or
  • To reduce the chance of exposure, if the employee is classified as high risk

Example: An employee with controlled diabetes normally functions at work without any accommodation, or with an accommodation not tied to COVID-19 (e.g., breaks for insulin monitoring and injections). Then, because the employee has a high risk disease, the employee requests an accommodation to reduce the risk of exposure, such as a separated work station or work from home.

So do what you always do: engage in the interactive process with the employee to see if you can meet her needs. The EEOC suggests the following accommodations to help minimize the risk of exposure (Question G.5.):

  • Additional or enhanced protective gowns, masks, gloves, or other gear
    beyond what the employer may generally provide to employees returning
    to its workplace
  • Additional or enhanced protective measures, such as erecting barriers or
    creating greater spacing between work areas
  • Elimination or substitution of the employee’s “marginal” job functions
  • Temporary modification of work schedules (if that decreases contact with
    coworkers and/or the public when on duty or commuting) or
  • Moving the location of where one performs work (for example, moving a
    person to the end of a production line rather than in the middle of it if
    that pro
    vides more social distancing).

The Job Accommodation Network (www.askjan.org) also may be able to assist in identifying possible accommodations. The EEOC encourages employers and employees to be creative and flexible. And employers, don’t worry about creating a “permanent” accommodation – the EEOC supports trial or temporary accommodations.

Finally, what about the employee who you know has a high-risk medical condition but doesn’t ask for an accommodation to reduce risk of exposure? Do you force the employee to stay home or accept other accommodations for his own good? Be careful there, cowboy. First, without a request for such an accommodation, you have no obligation to provide it. Second, that path requires an in-depth analysis to show that by working without appropriate accommodations, the employee poses a direct threat – a “significant risk of substantial harm” – to his own health. If you really want to follow this trail, read the EEOC’s Question G.4. for more guidance.

What is Matrix doing? Thanks to our already robust processes for managing ADA accommodations, Matrix has not had to make changes to provide our ADA clients with compliant accommodation services. However, our ADA Specialists have all been trained in the changing accommodation needs and analysis due to COVID-19. We’re here for you!

 

FFCRA – The DOL Adds More Questions & Answers

The latest set of Questions and Answers from the Department of Labor (#89-#93) includes a potpourri of topics. Here are the ones we find of greatest interest:

Employees from temporary agencies. Question #90 addresses how FFCRA paid leave rights apply to temporary workers when an employer (the “second employer”) has under 500 employees but the temporary agency has more than 500. In many temporary worker situations the second employer is a joint employer of the temp worker. In that case, in general, the second employer (under 500 employees) must provide the temporary worker with FFCRA rights and the temporary agency (more than 500 employees) must not interfere with the employee’s use of those rights to take leave of absence. But the determination of whether the second employer is a joint employer of the temp employee requires legal analysis of all the facts of the relationship. [Can you say, “Call my lawyer?”] And here’s an unanswered question: what do you pay the employee? The amount you pay through a temp agency probably includes the agency’s fee, so can you pay only what the employee actually pockets? And how do you handle tax and other withholding?

Wait, while you’ve got that lawyer on the line . . .

School closures – now and in the summer. Employers appear to be struggling with when an employee is entitled to the FFCRA emergency paid sick leave (EPSL) and/or expanded FMLA (EFML) due to a school or day care closure. Question #91 asks, What if my employee has been working at home for weeks with children present and now wants to take EPSL or EFML? Can I deny that? The DOL says, “not necessarily.” You need to ask questions about why the employee needs that leave now. Perhaps conditions at home have changed, or the employee is finding that he isn’t effective working with the kids at home 24/7. Or, the employee’s spouse has already used EPSL and EFML from her employer and now it is your employee’s turn. You can require that the employee to provide the information and documentation that is permitted under FFCRA and the IRS tax rules. You may also ask the employee to note any changed circumstances in his statement as part of explaining why the employee is unable to work, but the DOL warns, “you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.” (I’m not really sure what that means but thought I would share the warning with you!)

And finally, the DOL answered my pending question about EFML and summertime! After a school closure due to COVID-19 and distance learning, your employee’s child’s school closes for summer vacation. Can your employee now take EPSL or EFMLA? Sorry, no. If the school closes for summer vacation or any other reasons not related to COVID-19, the benefits of FFCRA are not available. But, if the anticipated summer day care provider, summer camp,, etc., is closed or won’t open due to COVID-19, the employee may be able to use EPSL and/or EFML. Just have the employee follow the usual notice and documentation rules. (Question #93)

Also covered: FFCRA and casual domestic workers (Question #89) and permissible documentation for an employee taking leave to obtain testing (Question #92).

 

NY PFL – A new WCB Position on PFL for Child Quarantine

The new New York law providing paid quarantine/sick leave and related benefits has been a real challenge – a poorly written law rushed through with lots of unclear provisions and little high-level understanding of how it would work in reality. Recently the NY Workers Compensation Board, which administers the law, came out with a new interpretation of one of the benefits: a total flip-flop from its prior position. We previously summarized the law here and have kept that post up to date, including this change. But because the new interpretation affects employees of companies with 100 or more employees, we want to draw attention to it.

Under the law (as we thought it was written) employees of small companies (those with fewer than 100 employees) seeking paid sick leave (if any) provided by the law, could take NY Paid Family Leave for a new leave reason, to care for a child under an order of quarantine or isolation; but employees of large companies (those with 100 or more employees) did not have this entitlement. The WCB now says that was wrong, and employees of those larger companies can also take PFL for a child’s covered quarantine. If you thought riding that bucking bronco for the full 8 seconds was challenging, try your hand at trying to stay on top of the NY paid sick leave law! Yee haw! 

Next out of the chute!
At some point, COVID related questions and issues will subside – though probably not soon enough. Meanwhile the world turns and the sun rises and sets, and there are other laws, regulations and accommodations to be considered – in most cases, ones that will outlast the killing power of the coronavirus bug. Fortunately, we can multitask (which is good, because you have to, too!) and will be picking up our Legislative Update series with some good, ol’ fashioned, wholesome state Paid Family and Medical Leave updates on Thursday, May 28. So watch your email, and this space, for your invitation and registration link.
If you’d like a copy of our presentation or recorded webinar from last week’s update, you can click the links provided.

WRANGLING ALL THAT COVID-19 NEWS – THE LAST (NOPE…) WE MEAN NEXT ROUND-UP

Posted On April 29, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Armando Rodriguez - Law Clerk, Compliance And Legal Department

April 29, 2020

 

Cowboy Radar

COVID news just keeps coming. In our last Roundup we covered the DOL’s latest FFCRA Q&As, USERRA and COVID-19, and orders from the governors of California and Washington. Today we saddle up with:

  • More ADA guidance from the EEOC
  • OSHA – employer obligations to provide a safe workplace
  • COVID goes to court
  • COVID in the city
  • Colorado joins the rodeo

More ADA Guidance from the EEOC

As we previously reported here and here, the EEOC offers employers assistance regarding the COVID-19 pandemic and compliance with the Americans with Disabilities Act in its document What You Should Know About COVID-19 and the ADA. The agency has lately added more questions and answers to the guidance. In short, all the usual ADA rules and requirements continue to apply but they may take on a new hue in a request related to COVID-19.

Here are some of the key takeaways, but be sure to consult the full document – this is a summary and the EEOC has much more info for you!

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? 4/23/20

Yes. Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. However, employers should ensure that the tests are accurate and reliable and should still require – to the greatest extent possible – that employees admitted to the workplace observe infection control practices to prevent transmission of the virus. (And see the OSHA segment below.)

D.6. [See also D.5] During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed?  (4/17/20)

Yes, even during COVID days, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee, now and in any ADA case, may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).  

D.7. If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)

Yes. Employers may choose to forgo or shorten the “interactive process” and grant the request. In addition, employers may wish to set an end date for an accommodation expected to be temporary or approve it on a trial basis. This may be pertinent while awaiting medical documentation in order to allow an accommodation that provides protection due to an employee’s heightened risk due to the pandemic. If circumstances change the employer should consider an extension of a temporary accommodation or whether a different accommodation is needed.

D.10. and D.11. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” or “significant expense during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. Examples include increased difficulty due to the pandemic in obtaining special equipment, providing temporary assignments, or removing marginal functions.

As to “significant expense,” the employer can consider sudden loss of some or all of an its income stream because of this pandemic and when current restrictions on an employer’s operations may be lifted. An employer cannot simply reject any accommodation that costs money but must weigh the cost of an accommodation against its current budget and current constraints created by this pandemic. Even under current circumstances, there may be many no-cost or very low-cost accommodations.

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. 

D.12. Does the ADA apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC?

Yes. All employees continue to be covered under the ADA and employers must consider accommodation requests during the pandemic, engage in the interactive process, and provide an effective reasonable accommodation if it doesn’t pose an undue hardship.

Coronavirus Goes to Court

The first known COVID-19 lawsuit has hit the courts! (Can a Movie-of-the-Week be far behind?) Plaintiff Amy Reggio lives in Dallas County, TX. According to the complaint, Dallas County Judge Clay Jenkins, who is in charge of Dallas County’s coronavirus response, issued orders requiring all individuals anywhere in Dallas County to “shelter in place.” Reggio worked as general counsel for a real estate development and investment firm which, she alleges, is not an “essential business” under the Dallas County stay-at-home order. Reggio informed her boss Mark Tekin of the order and of her inability to leave home and go to work as a result. Reggio told Tekin she could perform all of her job duties from home, but claims Tekin said “working from home did not work for him and it would not be allowed or considered.” Reggio explained to Tekin that if she violated the Dallas County order she could be subject to criminal prosecution, including imprisonment. Tekin terminated Reggio on March 27 when she continued to refuse to violate the Dallas County order and go to work.

Reggio’s claim is based on a legal theory known as “public policy wrongful discharge.” An employee may assert this claim when (1) her employer required her to commit an illegal act that carries criminal penalties; (2) the employee refused to engage in the illegality; (3) the employee was discharged by employer; and (4) the sole reason for the employee’s discharge was her refusal to commit the unlawful act. Reggio’s allegations check all four of these boxes, so game on! She is asking for $1 million in damages, include lost wages and benefits, other compensatory damages, and punitive damages. It’s very early yet in this litigation but my bets are on Reggio and a quick settlement – although probably not a million bucks.

The case is Reggio v. Tekin & Assoc., LLC (Dallas County Court, Texas No. CC-20-01986 B).

Lessons for employers. These tough times call for new ways of doing things. Employers need to be flexible and approach difficult situations with an open mind. Remember, special measures imposed as a result of COVID-19 are temporary, so allowing something that is not usually done can also be temporary. This was not a situation where the employee, on her own, decided not to go to work because she was uncomfortable or concerned about being exposed to the virus. In that case the employer might be able to require the employee come to work, but it needs to take appropriate measures in the workplace to ensure a safe environment – and for that issue, read on!

OSHA, COVID-19, and the Employer’s Obligation to Provide a Safe Workplace

As we look forward to a return to the usual workplace and routines, understanding an employer’s OSHA obligations with respect to COVID-19 is especially important. Employers are required to provide a safe workplace and appropriate safety equipment for workers. Employers outside of a manufacturing, processing, or other heavy industry may not regularly think about OSHA requirements. The occasional office paper cut just doesn’t stir much concern.

But now we are in COVID-land. The federal Occupational Safety and Health Administration administers laws that regulate worker safety, which will take on new significance as employees go back to the office. Two provisions of the Occupational Safety and Health Act are particularly applicable to COVID-19 in the workplace:

The General Duty Clause, Section 5(a)(1) requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

OSHA’s Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), requires using gloves, eye and face protection, and respiratory protection when job hazards warrant it.

So, new measures like spacing of desks, ample supplies of hand sanitizers and wipes, and limitations on use of common spaces and facilities may become necessary to fulfill an employer’s OSHA obligations. OSHA recently issued a booklet, Guidance on Preparing Workplaces for COVID-19. Recommendations include the now-familiar handwashing and covering coughs and sneezes, but also an important reminder that employees should not use each other’s workspace, telephone, and other work tools and equipment. You can find more information at the OSHA COVID-19 website, and there are loads of on line resources with ideas.  

In addition, states may have their own workplace safety laws and regulations. There are twenty-eight OSHA-approved State Plans, operating state-wide occupational safety and health programs. State Plans are required to have standards and enforcement programs that are at least as effective as OSHA’s and may have different or more stringent requirements.

In these days of increasing work from home, there is one bit of good news: OSHA will not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees. For more information see OSHA’s Directive on Home-Based Worksites.

As we move toward returning employees to the workplace, employers should develop a plan for what that will look like. Just be safe and be smart.

COVID in the City

OK, that doesn’t have the same ring as that TV show title – and it’s not nearly as much fun. Still, several cities are making news with their very own COVID-19 leave of absence laws. California seems to be the hotbed of such activity (Who saw that coming?). These COVID-19 ordinances vary by city (of course) but most have some common features:

  • Employer coverage picks up where FFCRA left off – most apply to employers with 500 or more employees.
  • Leave reasons mimic FFCRA, although some add new leave reasons as well, such as closure of a family
    member’s senior care facility or if the employee is age 65 or older or has an underlying high-risk
    health condition
  • Amount of paid sick leave also mimics FFCRA, with 80 hours of paid leave for full-time employees and
    the equivalent of two weeks’ pay for part-time employees, often capped at $511 per day or $5,110
    total per employee.
  • Health care workers are often exempted, at least as to leave for any reason other than their own
    COVID-19 diagnosis or quarantine.

San Francisco’s Public Health Emergency Leave Ordinance is in effect from April 17 through June 16, expiring on June 17, 2020 or when the Public Health Emergency is terminated, whichever is first.  Guidance from the Office of Labor Standards Enforcement is available here.

Los Angeles’s ordinance for Supplemental Paid Sick Leave has been superseded by an Emergency Order signed by Mayor Garcetti, cutting back on the scope of the ordinance. The Emergency Order will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

San Jose’s Urgency Ordinance providing temporary paid sick leave for COVID-19-related reasons is in effect from April 7 through December 31, 2020. Guidance and additional resources from the San Jose Office of Equality are available here.

Remember that many municipalities (and states) have existing paid sick leave laws that are likely to cover a variety of COVID-related needs for time off. My go-to resource is A Better Balance for a chart of paid sick leave laws across the country.

Colorado Joins the Rodeo

Colorado originally passed its Health Emergency Leave with Pay (Nominee for Best Acronym in a COVID-related program: HELP) rules on March 11 but has since significantly increased the scope of industries covered and the duration of paid leave. The rules are effective for 30 days after adoption (presently through May 27) or the duration of the State of Disaster Emergency declare by the Colorado governor, but with a maximum of 120 days after April 27. Including amendments adopted through April 27, here’s what the rules now provide:

All employees of a covered industry and working in a covered position are eligible for HELP. (Heehee, that totally works in a sentence! Good job, Colorado!)

Covered employers include those engaged in, or employing workers in, numerous industries, with no employer size limitations (coverage was effective as of March 11 unless a different date is indicated). Examples: leisure and hospitality, retail, real estate, office work, elective health services, personal care services, food and beverage manufacturing and services, education, and various elder or community care services. For details see the Colorado HELP website.

Paid leave is available for up to two weeks, with a maximum of 80 hours. Pay is at 2/3 of the employee’s usual rate, with no dollar caps. Paid sick leave ends following certain periods of being symptom free.

HELP provides leave for only one reason, to an employee:

  • with flu-like or respiratory illness symptoms and
  • who is (1) being tested for COVID-19 or (2) under instructions from a health care provider or
    authorized government official to quarantine or isolate due to a risk of having COVID-19.
A employer who already provides as much paid sick leave as required by the rules is excused from compliance. An employer who provides less paid sick leave than required by the rules must provide additional paid sick leave up to the amount required by HELP.

However, if an employee has exhausted all paid sick leave allotted by the employer, then the employer must provide additional paid sick leave up to the amount required by HELP.

The employer can require documentation to support the leave but with certain limitations:

  • Documentation can be required only after the employee’s return from leave, not as a precondition
    of taking or remaining on leave. An employee may not be terminated for failure to provide
    documentation during the illness.
  • If documentation is not available from a health care provider or the provider of the employee’s
    COVID-19 test, the employer must accept a written statement from the employee providing the
    pertinent information.

In an odd provision that is likely to give small employers heartburn, the rules provide, “To the extent feasible, employees and employers should comply with the procedures of the federal Family [and] Medical Leave Act (“FMLA”) to pursue and provide paid sick leave under these rules . . . ” This leaves a whole lot of open range as to exactly what that means and to what extent it is mandatory.

Employees must provide advance notice of the need for leave as soon as possible, unless they are too ill to communicate, and notice within 24 hours of getting a COVID-19 test or receiving instructions to quarantine or isolate.

Additional information is available on the Colorado HELP website.

Just When You Thought It was Safe: COVID Webinar II: The Revenge

Hopefully you joined my Reliance Standard colleague Karen Joseph a couple weeks ago for our webinar on COVID related federal and state leave legislation and how to apply it. If you didn’t, or even if you did and you want to prepare for the follow-up, you can access the slides as well as the recording. And while it’s no Season 3 of Ozark, I would say it’s required if you want to join us for the sequel:

On Thursday, May 7 at 2 PM Eastern, Karen and I will get back in that saddle and peel back some of these new developments at the national (OSHA), state and even local levels – plus we’ll incorporate some of your awesome questions from the first round. Plan to attend! Click here to register. Once you see the screen pop up with your name, go ahead and close the box: We will email you a confirmation before the event. (If you don’t get your email confirmation, note the date and time, because the link to join is the same as the registration link.)

See you there!

WRANGLING ALL THE COVID-19 NEWS – THE LATEST ROUNDUP

Posted On April 28, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Armando Rodriguez - Law Clerk, Compliance And Legal Department

April 28, 2020

 

Cowboy Radar

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
    sector workers
  • 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
    to COVID-19;
  • 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
    under USERRA.
  • 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.

Next Up

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!

Welcome

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!

WHAT ABOUT ME? THE PLIGHT OF THE 500+ EMPLOYER GROUP

Posted On April 14, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 14, 2020

 

FFCRA

At Matrix and Reliance Standard we receive questions about COVID-19-related issues daily – no, hourly. Since the passage of the Families First Coronavirus Response Act (FFCRA), many of these questions have revolved around a big  issue for big(ger) employers: What about companies that have 500 or more employees? These larger employers are not covered by the Emergency Paid Sick Leave Act (EPSL) or Emergency Family and Medical Leave Expansion Act (EFML) provisions of FFCRA. So what does apply and what can/should a large employer do?

Let’s take on that topic now. 

On April 9 Matrix and our sister company Reliance Standard Life Insurance presented a webinar on current
federal and state COVID-19-related legislation. I was joined by my RSL colleagues Karen Joseph and Tim Suchecki. We reviewed:

    • The Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave
      Expansion Act (EFML), both part of the
      FFCRA
    • State paid leave responses to COVID-19
      (including New York, of course)
    • Benefits and leave scenarios in various states
      that have state-mandated paid family and/or
      paid disability programs

You can obtain a copy of our presentation deck  here, and listen to a recording of the  session here.

My company has more than 500 employees. Does the “regular” FMLA apply to COVID-19?

Yes! The regular FMLA may come into play if an employee or employee’s family member is experiencing COVID-19 symptoms. BUT, the individual’s medical condition still must meet one of the FMLA definitions “serious health condition.A COVID-19 diagnosis, in and of itself, does not do this. Some individuals who have COVID-19 are asymptomatic or have very mild symptoms that will not rise to the level of a serious health condition.

Two specific definitions of serious health condition may be applicable here (29 C.F.R. §§ 113-115):

  • Inpatient care (an overnight stay in a hospital, hospice, or residential medical care facility plus
    any subsequent
    period of incapacity or treatment); or
  • Incapacity of more than 3 consecutive, full calendar days, that also involves 2 or more in-person
    treatments by a health care provider or 1 in-person treatment followed by a regimen of
    continuing care
    .

The FFCRA made no changes whatsoever to the rules and procedures for regular FMLA claims. Despite the difficulty in getting an in-person medical appointment, an employer may still require in-person treatment by a health care provider and a written certification. Employers do have the ability to waive this requirement and accept a certification following a telemedicine appointment or waive the certification requirement altogether. Employers should consult with their legal counsel on whether, in that case, the employer should take the same approach to certification requirements for all serious health conditions, not just COVID-19 claims. Maybe this makes sense, as employees will have an even tougher time get an appointment and medical certification for non-coronavirus health conditions.

All other regular FMLA rules also continue to apply, including employee eligibility, total 12-week entitlement, required employer and employee notices, and so on.

My Company has more than 500 employees. Should we provide EPSL and EFML benefits to our employees?

Employers need to approach this decision with eyes wide open. If an employer with 500 or more employees elects to provide the EPSL and/or EFML benefits to its employees, there are two key things to understand:

  1. EFMLA is available when an employee’s child’s school or daycare has closed, or a day care
    provider is unavailable, due to COVID-19.
    This leave counts toward an employee’s 12-week
    FMLA
    entitlement per 12-month period. For employers with 500+ employees, any time
    taken by an employee that fits the parameters of EFMLA is not FMLA leave and cannot be
    counted toward the employee’s 12
    weeks of FMLA. Doing so could be considered
    interference with the employee’s FMLA rights by charging the employee’s FMLA bank
    with leave that is not covered by the FMLA or EFML.
  2. Paid leave provided to non-covered employees for EPSL or EFML reasons will not qualify for
    the 100% tax credit available for wage and related payments made pursuant to the acts.

With those two factors in mind, employers with 500 or more employees can certainly offer the same type of benefits to its employees as a new company policy or benefit. And, any employer can allow (but often cannot require!) employees to use existing company-paid sick leave, PTO, and other paid leave benefits for COVID-19-related reasons not normally covered, such as quarantines or school closures.

My Company has more than 500 employees. Do we need to post notice of the EPSL and EFML?

No. You are not a covered employer so no need to put up the DOL-approved poster (available here in several languages for those who DO need to post or share electronically!). In fact, posting the notice if your company is not covered might just add confusion to an already confusing situation for employees.

My business is made up of multiple companies, some over and some under 500 employees. Should we provide EPSL and EFML benefits to ALL employees?

The previous question provides the answer here: be aware of the two key factors in making your decision. But there is an additional consideration: If you provide EFML benefits to the employees of the 500+ companies you are in effect giving those employees greater benefits than the employees of smaller companies. That’s because, for the employees of the larger companies, the paid time off cannot count toward the employee’s FMLA 12-week entitlement, but such usage for an employee of a smaller company does count toward FMLA. So the employees of the larger companies may be able to take more leave in a 12-month period, paid or unpaid, than employees of the smaller companies. Be ready for employee dissatisfaction with perceived inequities in benefits among the companies!

My company has ABOUT 500 employees, depending on the day. Should we provide EPSL and EFML benefits to our employees regardless of each day’s headcount?

Whether an employer has fewer than 500 employees is determined as of the first day of leave of EACH employee requesting leave. That means, for example, that an employer with 510 employees today does not have to grant leaves that will start today; but a week later, if the employee headcount drops to 495, the employer does have to grant leaves requested to start that day. (This may include leave for the employees denied today.)

In light of this moving target it may be tempting to simply grant the paid leave for all employees regardless of a specific day’s employee count. But any EPSL or EFML benefits provided while the company has 500 or more employees on the leave start date won’t count toward the employer’s paid leave obligations to an employee for the leaves that ARE covered, won’t qualify for the tax credits, and can’t be counted toward the employee’s FMLA entitlement. Feeling like a broken record here, but there are so many permutations on that 500 rule!

My business is made up of several related entities. Should we provide EPSL and EFML benefits to our employees?

Generally, each legal entity, such as a corporation, is a separate employer for purposes of counting employees for EFMLA (and FMLA) coverage. However, in some cases related entities may constitute a single employer and therefore all employees of the related entities are counted to determine the under/over 500 count.

Here is guidance from the FMLA regulations, which are incorporated into the EFML regulations:

A corporation is a single employer rather than its separate establishments or divisions. Where one corporation has an ownership interest in another corporation, it is a separate employer unless it meets the “integrated employertest. Where this test is met, the employees of all entities making up the integrated employer will be counted in determining employer coverage and employee eligibility. A determination of whether or not separate entities are an integrated employer is not determined by the application of any single criterion, but rather the entire relationship is to be reviewed in its totality. Factors considered in determining whether two or more entities are an integrated employer include:

(i) Common management;

(ii) Interrelation between operations;

(iii) Centralized control of labor relations; and

(iv) Degree of common ownership/financial control.

(29 C.F.R. §§ 825.104 and § 826.40)

This assessment is important because, if your company is part of an integrated employer with a total of 500 or more employees, any benefits provided cannot be counted toward an employee’s FMLA usage and won’t qualify for tax credits, as discussed above. On the other hand, if your under-500 corporate entity is affiliated with other companies but does not satisfy the integrated employer test you may be covered by FFCRA without realizing it.

SAFE BET: If you have questions about whether your company is part of an integrated employer, consult your legal counsel. The determination depends on a legal analysis your company’s specific facts and circumstances.

My company usually has more than 500 employees, but we have had to furlough hundreds and now have fewer than 500 active employees. Are we covered by FFCRA?

Yes. Those remaining active employees are entitled to EPSL or EFML paid benefits and job-protected leave. Employees on furlough or laid off are not counted toward the company’s number of employees. Likewise, they are not entitled to FFCRA benefits. However, furloughed or laid off employees may be entitled to unemployment benefits, which vary from state to state.

My company has more than 500 employees. Are there any other COVID-19-related laws we need to comply with?

Yes. Specifically, New York passed a law, effective March 18, 2020, which provides paid leave to employees of all employers when the employee or a minor dependent child is subject to an order of quarantine or isolation. The type and amount of paid benefits available to employees depends on employer size. Employers with 100 or more employees must provide 14 calendar days of paid leave due to an employee or minor child quarantine (that is, pay for the number of days the employee would normally work in a 14-day period). For details on the New York law, check out our New York FAQs and our webinar presentation  and recording.

In states with paid family leave and/or paid disability benefits, many changes have been made to afford benefits to employees for COVID19-related leaves. These too are covered in our recent COVID-19 webinar.

Matrix can help!  

Look, there are obviously a number of factors in play surrounding the recent COVID-19 laws, particularly as they relate to providing benefits voluntarily to companies with more than 500 employees. It’s a sad, but unavoidable truth that well-meaning employers must nonetheless be cognizant of the unintended consequences that could result without careful examination of ALL the laws that apply to them. We are here to offer information and illumination – that’s our jam! But remember, consulting with legal counsel and a tax expert is always advisable if employers with over 500 employees choose to provide benefits more generous than those required under the law.