I .  FOR ALL EMPLOYERS REGARDLESS OF STATE

Overview

Families First Coronavirus Response Act:  Following the devastating impact of COVID-19 on the health of American workers and the workplace, on March 18, 2020, the President of the United States signed Families First Coronavirus Response Act, or H.R. 6201 (“FFCRA” or the “Act”) into law.  The FFCRA requires employers with fewer than 500 employees –including nonprofit organizations—to provide their employees with job-protected paid sick leave and/or expanded family and medical leave where they miss work for specified reasons related to COVID-19.

The law took effect on April 1, 2020 and ends on December 31, 2020.  Among other provisions of the FFCRA, most relevant to U.S. employers are three key provisions:

• Emergency Paid Sick Leave Act (EPLSA)
• Emergency Family and Medical Leave Expansion Act, amending the Family and Medical Leave Act of 1993 (EFMLEA)
• Payroll tax credits for employer paid leave payments under EPSLA or EFMLEA

This Alert addresses these three key FFRCA provisions, some specific questions answered by the U.S. Department of Labor in its guidance, and New York State’s own COVID-19 Quarantine Paid Sick Leave Law (“NYS Paid Sick Leave”), also signed into law on March 18, 2020, and the interplay between the two laws. Regulations implementing the FFCRA are expected in early April.

NYS’s Paid Sick Leave Law also took effect on March 18, 2020, and requires employers to provide job-protected sick leave to employees and their minor children who are subject to a quarantine or isolation order due to COVID-19.

U.S. DOL Regulations and Guidance

On April 1, 2020, the U.S. Department of Labor (DOL) issued temporary implementing regulations.

Prior to that, on March 24, 28 and 29, 2020, the U.S. Department of Labor (DOL) supplemented its resources on COVID-19 and the American Workplace by issuing:

• Q & As for employers covered by FFCRA (i.e., those with fewer than 500 employees)
• FACT SHEETS FOR EMPLOYERS AND EMPLOYEES (in English/Spanish)
• MANDATORY FFCRA POSTER AND Q & A ON POSTING: Posting required by April 1^st.
• DOL FIELD ASSISTANCE BULLETIN: Providing employers with temporary non-enforcement of violations of the FFCRA by the DOL through April 17th.

Below are Q & As addressing each of those three provisions of the FFCRA affecting workers at businesses and nonprofit organizations, including some questions and answers by the DOL:

Q: Which Employers are Covered by FFCRA?

A: In general, the paid sick leave and expanded family and medical leave provisions of the FFCRA apply to employers with fewer than 500 employees (for-profit and non-profit alike), and certain public sector employees with at least 1 employee. Most employees of the federal government are covered by Title II of the Family and Medical Leave Act (FMLA), which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

Q:  What are FFCRA’s Paid Leave Entitlements?

A: Under the FFCRA, eligible employees are entitled to:

• Up to two weeks (80 hours for full-time employee) fully or partially paid leave, or a part-time employee’s two-week equivalent of paid sick leave based on the higher of their regular rate of pay, or the applicable state or Federal minimum wage, paid at:

– 100% for Qualifying Reasons #1-3 below, up to caps of $511 per day and $5,110 in the aggregate;

– 2/3 for Qualifying Reasons #4 and 6 below, up to $200 daily and $2,000 aggregate for the entire two-week paid leave period; and

– Up to 12 combined weeks of paid sick leave and expanded family and medical leave (paid at 2/3 for Qualifying Reason #5 below (2 weeks’ paid sick leave plus additional 10 weeks’ paid family leave), up to a cap of $200 per day per employee and $12,000 total (over 12-week period).

Employees need not be employed for any particular period of time to be eligible for Emergency Paid Sick Leave Act (EPSLA).  Note, however, that in order to be eligible for leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) which is an expansion of the federal Family and Medical Leave Act (FMLA), employees must be employed for at least 30 days before their leave request to be eligible for up to an additional 10 weeks of partially paid expanded family and medical leave under EFMLEA for Qualify Reason #5 below.

A part-time employee is entitled to leave for his or her average number of work hours in a two-week period.

Q: What are the Qualifying Reasons for Paid Leave Related to COVID-19?

A: An employee is entitled to take leave related to COVID-19 if the employee is unable to work (including telework) because:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.

(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

(4) The employee is caring for an individual who is subject to an order as described above in subparagraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Where the paid sick leave is being used because of Qualifying Reasons #1, 2 or 3, above, the employee is eligible for his/her regular rate of pay, up to a cap of $200 per day and $2,000 in the aggregate.

Q:  How much will an employee be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?

A:  The amount depends on an employee’s normal schedule as well as why the employee is taking leave.

1. If an employee is taking paid sick leave because they are unable to work or telework due to a need for leave because they (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, he/she will receive for each applicable hour the greater of their regular rate of pay, the federal minimum wage in effect under the FLSA, or the applicable State or local minimum wage. An eligible employee is entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

2. If an employee is taking paid sick leave for reasons above in #4 and 6 (i.e., specifically because he/she is: (a) caring for an individual who is: (1) subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or (2) an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services), the employee is entitled to compensation at 2/3 of the employee’s regular rate of pay, or federal or State minimum wage. Under these circumstances, the employee is subject to a maximum of $200 per day, or $2,000 over the entire two-weeks.

3. Similarly if an employee is taking expanded family and medical leave under Emergency Family and Medical Leave Expansion Act (EFMLEA) as they are unable to work because they are caring for their child whose school or childcare place is closed, or child care provider is unavailable, due to COVID-19 related reasons, the employee gets up to 12 weeks of paid sick leave and expanded family and medical leave combined.

The first ten (10) days of that EFMLEA leave period are unpaid (or the employee may substitute any accrued vacation leave, personal leave, or medical or sick leave under an employer’s policy, or if the leave also qualifies for paid sick leave under EPSLA, the employee can get those first 10 days paid under EPSLA’s terms), but the remaining leave will be paid at an amount no less than 2/3 of the employee’s regular rate of pay for hours he/she would be normally scheduled to work.   An employee will not receive more than $200 per day or $10,000 for the remaining weeks.

Q:  If an employee takes paid sick leave under the Emergency Paid Sick Leave Act (EPSLA), does that count against other types of paid sick leave to which an employee is entitled under State or local law, or against the employer’s own sick leave policy?

A:  No. Paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) is in addition to other leave provided under Federal, State, or local law; an applicable collective bargaining agreement; or an employer’s existing company policy.

Q:  If an employee is able to telework while caring for their child, are they still entitled to paid sick leave or expanded family and medical leave?

A:  No.  To the extent an employee is able to telework while caring for their child, paid sick leave and expanded family and medical leave is not available.

Q:  Does the employee have to provide notice of the need for sick/family leave and supporting documentation?

A:  Yes,  it will be reasonable for an employer to require notice as soon as practicable after the first workday is missed, and to require that employees provide oral notice and sufficient information for an employer to determine whether the requested leave is covered by the FFCRA. It is reasonable for the employer to require the employee to comply with the employer’s usual notice procedures and requirements, absent unusual circumstances.

An employer may require an employee to provide supporting documentation for their request to take paid sick leave including the qualifying reason for the leave, dates for the leave, and a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.   An employee may need to provide additional supporting documentation depending on the qualifying reason for the leave.  For paid family leave, for instance, where leave is sought because a child’s school is closed, the employer may require  a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.   The employer must retain this documentation in support of leave under the FFCRA for four years.

The employee may also be required by the employer to provide the employer with supporting documentation for paid sick and expanded family and medical leave as specified in applicable IRS forms, instructions, and information.

Job Restoration

Q:  Does FFCRA guarantee job restoration for employees? 

 A: Yes, but with conditions if the employer has fewer than 25 or more employees.  The FMLA Expansion Act is an amendment to the FMLA which provides job-protected leave to employees. In most instances, an employee  is entitled to be restored to the same or an equivalent position upon return from paid sick leave or expanded family and medical leave.

However, an employer may also refuse to return an employee to work in the same position if he/she is a highly compensated “key” employee as defined under the FMLA, or if the employer has fewer than 25 employees, and the employee took leave to care for his/her own son or daughter whose school or place of care was closed, or whose child care provider was unavailable, and all four of the following hardship conditions exist:

• the position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of the employee’s leave;
• the employer made reasonable efforts to restore employee to the same or an equivalent position;
• the employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
• the employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after the employee’s leave began, whichever is earlier.

Further, an employee is not protected from employment actions, such as layoffs, that would have affected the employee regardless of whether the employee took leave. The employer can lawfully lay off employees for legitimate business reasons, such as the closure of the worksites so long as the employer can demonstrate that the employee would have been laid off even if he/she had not taken leave.

Exemptions

 Q:        Are There Any Exemptions Under FFCRA?

A:  The U.S. Department of Labor may issue regulations to (i) exclude certain health care providers and emergency responders from paid leave benefits, and (ii) exempt small businesses with fewer than 50 employees from the paid leave requirements “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”

Q:  When does the small business/small nonprofit exemption apply?

A:  An employer, including a religious or nonprofit organization, with fewer than 50 employees is exempt from providing:  (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern.

Furlough, Layoff, Termination

Q:  If an employer closes its worksite on or after April 1, 2020 (the effective date of the FFCRA), but before an employee goes out on leave, can the employee still get paid sick leave and/or expanded family and medical leave?

A:  No. If an employer closes after the FFCRA’s effective date (even if the employee requested leave prior to the closure), the employee will not get paid sick leave or expanded family and medical leave, but may be eligible for unemployment insurance benefits.

Q:  If an employer is open, but furloughs an employee on or after April 1, 2020 (the effective date of the FFCRA), can that employee receive paid sick leave or expanded family and medical leave?

A:  No. If an employer furloughs an employee because it does not have enough work for that employee, the employee is not entitled to then take paid sick leave or expanded family and medical leave, but the employee may be eligible for unemployment insurance benefits.

Reimbursement for Paid Leave/Payroll Tax Credits

 Q:  Is the Government Going to Help with Costs of Mandatory Paid Leave That Employers are Being Forced to Pay During this Time of Financial Hardship? 

 A:  Yes.  FFCRA provides covered employers (both nonprofit and for-profit) with refundable payroll tax credits that reimburse them for their paid sick and family leave payments under the law.  The credits are applicable to the employer’s portion of Social Security taxes for 100% of the qualified sick leave and family leave wages paid by the employer in accordance with the law, up to the appropriate per diem and aggregate payment caps.  Covered employers may seek reimbursement for these tax credits after employer pays the paid leave (whether it’s the paid sick or paid family leave) when filing their quarterly returns (IRS Form 941).  Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage.

The IRS has issued guidance and an FAQ concerning the tax credits.  Under IRS guidance, the employment tax credits under FFCRA are available for wages paid for the period between April 1, 2020, and December 31, 2020.  (Note, however, that SBA loans under the Paycheck Protection Program may not be used to pay for leave under the FFCRA).

Penalties and Enforcement

Q:  What are the penalties for non-compliance with the Act?

 A:  Employers in violation of the EPSLA or EFLMEA, including retaliation, will be subject to penalties and enforcement by U.S. DOL’s Wage and Hour Division.  Employees may file complaints with the US DOL for violations of those laws.  With respect to violation of the EFMLEA, an employee may have a private right of action against the employer if they would otherwise be protected by the FMLA.

Q:  Is there a safe-harbor period for employers before enforcement?

 A:  Yes. On March 26, 2020, DOL issued a Field Assistance Bulletin, stating that it would not enforce the law against employers through April 17^th (30 days from the Act’s passage) where the employer has acted reasonably and in good faith to comply with the Act.

II.  FOR NEW YORK STATE EMPLOYERS

New York State Emergency COVID-19 Quarantine Paid Leave Law

On March 18, 2020, Governor Cuomo signed into law New York’s Emergency COVID-19 Paid Sick Leave law (NY Paid Sick Leave), on the same day as the FFCRA was enacted.  Unlike FFCRA which takes effect on April 1, NY Paid Sick Leave Law took effect on March 18, 2020.  Notably, NY Paid Sick Leave Law took effect before the Governor issued the “NY on PAUSE.”

Below are Q & A addressing the key components of New York State’s Emergency COVID-19 Quarantine Paid Sick Leave/Paid Family Leave law and addressing interplay with FFCRA:

Q:  Who Is Eligible for New York State’s Emergency COVID-19 Quarantine Paid Sick Leave/Paid Family Leave (NYS Paid Sick Leave Law)?

A:  Employees in New York or their minor dependent child–who are subject to an order of mandatory or precautionary quarantine or isolation due to COVID-19–may be eligible for a certain amount of job-protected sick leave and compensation through a combination of disability and paid family leave benefits, for the duration of the quarantine order.  To be eligible, a full-time employee must have regularly worked 20 hours or more per week and must have been in employment for at least 26 consecutive weeks with that employer.  A part-time employee who regularly works less than 20 hours per week must have worked 175 days to be eligible. The State guidance on the leave makes clear that employees are not eligible for this leave if they can work remotely or through other means.

Q:  If an Employee is Asymptomatic or Not Diagnosed with a Medical Condition and Is Physically Able to Work, Are They Eligible for These Benefits?

A:  No.   Benefits do not apply in cases where an employee is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means. Benefits are also not available to employees who voluntarily traveled to a country with a level 2 or 3 health notice from the Centers for Disease Control and who were provided notice of the travel health notice and knew about this restriction in the new law.

Q:  How Does This Apply to A Minor Dependent Child?

A:  If an employee’s minor dependent child is under a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the New York State Department of Health, local board of health, or any government entity duly authorized to issue such order due to COVID-19, an employee may be eligible to take Paid Family Leave to care for them. This benefit is not available to an employee able to work through remote access or other means.

Q:  How much paid leave is an eligible employee entitled to?

A: The amount of job-protected paid leave depends on employer size:

– Employers with 10 or < employees (as of 1/1/20):   New York employers already provide statutory short-term disability and Paid Family Leave benefits to their employees. This requirement has not changed with the new rules related to Coronavirus/COVID-19. Those insurance policies will provide compensation to employees who are under quarantine.  Employees complete the same form as they would if they would ordinarily be applying for paid family leave benefits.

– Employers with 11-99 employees, or employers with < 10 employees (as of January 1, 2020) and annual income > $1 million in 2019:  Employers must provide employees with at least 5 days of paid sick leave while on quarantine. If employees do not have more sick leave while on quarantine, an employer should help them apply with the employer’s Paid Family Leave and disability insurance carrier (the maximum paid family leave and disability benefit is $2,884.62 per week). Employees may not be required to use any accrued sick leave that their organization provides, but may choose to use any paid time off after exhausting the State-mandated five days of paid sick leave.

Eligible employees make a request for leave for themselves or their minor child due to COVID-19 directly to their employer who then provides them with applicable forms.

– Employers with 100 or more employees as of January 1, 2020 and public employers:  Employers must provide employees with at least 14 days of paid sick leave.   Public employers (for example, town, public school, public college or university, district, county, city, village, fire district and state), must provide at least 14 days of paid sick leave, regardless of how many employees they have.

Q:  Is There Job Protection?

A:  Yes.  Employers must reinstate the employee to the same or a comparable position, upon returning from leave, and like FFCRA, retaliation is prohibited.

Q: If An Eligible Employee Already Has Accrued Paid Sick Leave Under NYC Paid Sick Law or Under Its Own Employer Policy, Must An Employer Also Still Provide COVID-19 NY Paid Sick Leave?

A:  Yes.  COVID-19 NY Paid Sick Leave is in addition to any other paid sick leave.

Interplay Between FFCRA and NYS Paid Sick Leave Law

Q: If an Employee is Eligible for Both FFCRA and COVID-19 NYS Paid Leave, Which Leave Law Applies?

A:  Where the federal and state laws overlap on mandatory quarantine, the federal law applies. State law applies to the extent it gives employees additional benefits beyond what federal law allows.

Q:  How Do the FFCRA and NYS Paid Sick Leave Law Overlap?

A: The federal Emergency Paid Sick Leave Act and EFMLEA  (expanded FMLA) and NYS Paid Sick Leave Law overlap when the reason for leave is due to an employee being subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19, as this is a reason for paid leave supported by both federal and state law.

For example, an employee works for an employer with 60 employees and is subject to a mandatory order of quarantine or isolation due to COVID-19.  Under the federal Emergency Paid Sick Leave Law, this employee is entitled to 80 hours of paid sick leave at their regular rate of pay, capped at $511 per day and $5,110 in the aggregate.  Under the NY Paid Sick Leave Law, based on employer size, this employee is entitled to 5 calendar days of paid sick leave at their regular rate of pay, and may also be eligible for disability and paid family leave benefits after the 5 days of paid leave, with a maximum of paid family leave and disability benefits payable at $2,884.62.

Thus, to the extent the employee is eligible for benefits greater than the 80 hours of paid sick leave from the New York Paid Sick Leave Law through disability and paid family leave benefits under New York law, the employee may still take advantage of those State law benefits.

Q:  What are Penalties for Non-Compliance with COVID-19 NYS Paid Sick Leave Law?

A:  If an employer does not provide the required COVID-19 paid leave under New York State’s Paid Sick Leave Law, if the employer requires employees to come to work even if the employer is not an essential business, if the employer requires employees to come to work even if they are performing business operations that are not necessary to support essential services, or is not permitting employees to telecommute or work from home where their job responsibilities would permit them to do so, an employee may file a complaint with the NYS Department of Labor who can enforce the law.

Q:  Is There Additional Guidance?

A:  For employer guidance on Emergency COVID-19 NY Paid Leave, click here and fact sheet here; or the State’s FAQ about the law, click here; and here, for guidance for New York City employers concerning COVID-19 laws.

 III.  What Should Employers Do Now?

• Prepare an emergency leave policy addressing the emergency paid sick/family and extended FMLA leaves and ensure that it aligns with existing paid time off/leave policies as well as any mandated paid leaves under State or local laws
• Communicate the updated policies and employee rights under these laws to all staff
• Inform employees how to apply for such leaves and timely respond to employee requests for leave
• Budget for the costs of paid leave for the remainder of the year
• Anticipate how staffing will be addressed to cover those employees on such leave.
• Confer with legal counsel on addressing these updates.

The information provided does not constitute legal advice, and is not intended to substitute for legal counsel.

If you have questions about the FFCRA and its exemptions, or need assistance preparing emergency paid leave policy and other policies related to COVID-19, please contact Lisa Brauner, Esq., Head of Perlman & Perlman LLP’s Employment Law Department, 212-889-0575, ext. 207, lisa@perlmanandperlman.com.  Our firm is here for you during this crisis and doing everything we can to support and guide you.

The post COVID-19 and the Workplace: What Families First Coronavirus Response Act and NYS Emergency COVID-19 Paid Leave Mean for Your Organization appeared first on Perlman & Perlman.

Below are some Q & As for employers to consider now.  As the situation develops, expect that the questions and answers may evolve too. 

Q:  What steps can we take now to help keep our employees safe without violating workplace laws protecting confidentiality of medical information, disabilities and other employee rights?

A:   There are four immediate steps U.S. employers can take:

1.  Prepare a written communication to employees regarding the steps your organization is taking to minimize the risk of COVID-19 spread, providing them with information from Centers for Disease Control and Prevention (“CDC”), State and local public health agencies, and OSHA, providing concrete steps to minimize risk, and providing verbal and/or written updates about COVID-19 as more public health information becomes available.
2. Prepare and execute on a plan for keeping employees safe and minimizing the risk of COVID-19 spread to employees and clients/customers, including implementing policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19.
3. Prepare: a) an Infectious Disease Preparedness and Response Plan and b) written business continuity/contingency/emergency plan in event that an employee or employees become infected with COVID-19, that your workplace must close, your employees become ill and/or schools/nursing homes/hospitals/caregiving facilities close, requiring your workers to take on care-giving or other responsibilities, and pre-plan if hosting or attending events (and confer with your legal counsel to prepare such plans if you do not have one).
4. Confer with your legal counsel on your obligations under the ADA, Rehabilitation Act, FMLA, OSHA, benefits laws, workers’ compensation, short-term disability, wage/hour laws and other potential liability

Q:  What Should We Communicate to Employees? 

A:  Here are a few suggestions regarding your written communication to employees and actions to be taken to sanitize your workplace:

Make employees aware of CDC guidance, including guidance before traveling, and other OSHA and public health recommendations (share CDC fact sheet) like:

• Wash your hands often with soap and water for at least 20 seconds. If soap and water are unavailable, use a hand sanitizer with at least 65% alcohol base. Even if employees wear gloves, they should wash their hands upon removal of the gloves in case their hand(s) became contaminated during the removal process.
• Avoid touching your face with unwashed hands.
• Stay home when you are sick.
• Avoid close contact like kissing, hugging and sharing cups or utensils, with people who are sick. CDC explains “close contact” means within about 6 feet. [1]
• Cover your cough or sneeze with a tissue, then throw the tissue in the trash. If you do not have a tissue, use your sleeve/inside elbow (not your hands).
• Keep work surfaces, telephones, computer equipment and other frequently touched surfaces and office equipment clean. Disinfect frequently touched objects and surfaces, daily.
• Use only disinfectants registered by the U.S.  Environmental Protection Agency (EPA), and follow all directions and safety precautions indicated on the label.
• CDC does not recommend face masks for those who are well in preventing the spread of COVID-19; rather, they are most effective when used appropriately by health care workers and people who are sick.
• Pay attention to your health for 14 days after returning to the U.S. from travel to areas identified by CDC with widespread sustained (ongoing) transmission or community spread.
• Stay home and seek medical advice if you get sick with fever, cough, difficulty breathing or other respiratory symptoms.
• Avoid traveling if you are sick.
• Self-monitor for signs and symptoms of COVID-19 if you suspect possible exposure.
• Consider getting a flu immunization to prevent influenza if you have not done so this season (however, there is no indication from any health agency that doing so protects against COVID-19).

Implement Communicable Disease Policies during a pandemic, requiring employees to inform management if they are experiencing symptoms of COVID-19, requiring immediate notification from supervisors to Human Resources, and requiring that management or HR notify other employees if they have been exposed to COVID-19 (while maintaining confidentiality of medical information and without identifying that infected co-worker).

Remind employees of your paid sick and other leave policies, and to stay home if they feel sick, and consider offering more flexible paid sick leave or paid time off at this time to encourage sick employees to rest until they are well. Be consistent in the application of your organization’s policies.

• Notify employees of specific actions that your organization has taken to disinfect the workplace: increasing frequency of the sanitization of common area, door handles and knobs, kitchen and restroom door handles, and elevator buttons; providing additional soap, hand sanitizer and paper towels for use when entering or exiting the premises
• Address any restrictions on work-related travel and be prepared to answer questions from employees about whether they can refuse to travel due to safety concerns for their health

Follow public health advice regarding social distancing: For instance,

• Avoid shaking hands or other physical contact (regardless of whether you know a coworker is sick);

• Reduce the frequency, proximity, and duration of contact with others (both co-workers and clients), and unnecessary social interactions. Minimize situations where groups of people are crowded together, such as in a meeting. Use e-mail, phones and text mess ages to communicate with each other. When meetings are necessary or eating meals, avoid close contact by keeping a separation of at least 6 feet, where possible, and assure that there is proper ventilation in the meeting room.

• Reconsider all situations that permit or require employees, clients, and visitors (including family members) to enter the workplace; and manage third parties who visit the workplace.

• Consider banning non-essential work travel. Consider scheduling meetings by videoconference, rather than in-person, where feasible.  Limit the number of in-person meetings or duration of contact.

• Provide clients and the public with tissues and trash receptacles, and with a place to wash or disinfect their hands.

• Refrain from using other employees’ phones, desks, offices or other work tools and equipment.

• If allowing remote work/telecommuting temporarily, you may want to address that option and the parameters/limitations of it in the communication to employees. (see below)

• Train managers on how to handle situations where employees are coughing or sneezing in the workplace

Q:  May an employer require employees to stay home if the employee is exhibiting symptoms of COVID-19?

A: Yes, according to the EEOC, the Americans with Disabilities Act (“ADA”)(which applies to employers with 15 or more employees) does not interfere with or prevent employers from following the CDC’s guidelines and suggestions about steps employers should take regarding the novel coronavirus.  Where there is factual evidence sufficient to show that the person contracted COVID-19, the employee should self-quarantine at home for 14 days and seek medical attention. The EEOC has issued guidance on dealing with pandemics as it relates to its enforcement of the Americans with Disabilities Act (ADA) that employers may wish to review to understand their legal obligations.

Before an employee returns to work, an employer may require them to bring a doctor’s note that they are fit to return to duty, subject to any State or local restrictions on how soon that documentation may be requested (however OSHA advises against insisting on such a note in view of the fact that with an epidemic such as this one, it may be difficult for an employee to get a doctor’s appointment).  Ensure that any infection control plan and the employment decisions around it comply with laws prohibiting workplace discrimination on the basis of disability, national origin, ethnicity, age, race, sex, age, color, religion, and any other legally protected category.

CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or who become sick during the day should be separated from other employees and sent home immediately, and OSHA also recommends separating the sick from other employees.

Q:  May an employer require an employee who has returned from travel to an area identified by the CDC as high-risk to self-quarantine at home for 14 days as a precautionary measure even if the employee shows no symptoms of COVID-19?

A:  Yes.  In fact, New York State has issued just such a precautionary quarantine, which also extends to people who are not symptomatic but have had proximate (not direct) exposure to a person who has tested positive for COVID-19 (regardless of whether they have travelled from one of the countries identified by CDC as high-risk).   The precautionary self-quarantine in New York also applies to any person who local health providers and health departments, as well as the state’s Department of Health, believe needs quarantine. Employers should be consistent, however, in applying any rule to employees.

Q:  During a pandemic, may an ADA-covered employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?

A:  Yes. Asking why an individual did not report to work is not a disability-related inquiry under the ADA.   An employer is always entitled to know why an employee has not reported for work.

Q:  How should employers handle work-related travel and conferences/events?

A:  Employers may want to consider limiting or canceling non-essential work travel and not attending or postponing conferences or large events, regardless of whether travel or events are international or domestic.  The C.D.C. has advised that older adults and travelers with underlying health issues (such as heart disease, chronic lung disease, diabetes, and other conditions that cause suppression of immune system) should, in particular, avoid crowded places, long plane trips, and embarking on cruise ships.

As the novel coronavirus has spread throughout the continental United States, with more than 600 confirmed cases reported as of March 10, 2020 in the U.S., in 34 States (142 cases in New York State alone), and more expected once more testing kits become available, organizations should use common sense about limiting non-essential work travel and delaying the hosting or attending of conferences or events where possible to keep employees safe.

Q:  What Should We Do If We Are Hosting an Event/Conference? 

A:  Consider postponing your event for safety reasons where possible.  If postponing or cancelling is not an option, review and follow CDC’s interim guidance on large events and gatherings and other State and local public health guidance for pre-planning to limit exposure where someone gets sick or is sick at an event.

Follow CDC Recommendations for Safety/Health/Disinfecting:  Entities may also take into account CDC’s guidance for community and business for workplace proper hygiene to reduce the risk of spread and disinfecting the venue, including, but not limited to, disinfecting “high-touch” areas—doorknobs, restroom handles, faucets, etc.,  providing alcohol-based hand sanitizer at the event and in restrooms, ensuring there is sufficient soap and water, posting public health advisories in the restrooms like “Cover Your Cough” and other applicable postings for your locale, and providing tissues and waste receptacles.  Practice “social distancing”—inform event planners that hosts, attendees, presenters, etc., should be instructed to avoid shaking hands, hugging, kissing, other physical contact, and try to keep at least 6 feet between persons, where possible.

Organizations may want to check the scope of their insurance coverage to see whether they would be covered for any such situation, including event cancellation, business interruption and general liability coverage.  Review with your legal counsel your contract with the venue to see if there’s a basis to cancel or reschedule your contract without losing your payment and to determine the scope of indemnification provisions.  Consider whether your organization is bringing independent contractors on-site for the event and if so, what safety/health precautions you are taking with respect to their interactions at the event, the risks of doing so, and how you will keep them safe as well.

 Q:  What Should I Consider with respect to Employee Benefits Issues?

 A:  In a communication to employees, employers may want to provide a copy of or information about relevant employee benefits like paid sick leave, paid time off, and if applicable based on their jurisdiction, paid family leave, or based on your employee size, Family and Medical Leave Act (FMLA) leave, if applicable.  The U.S. Department of Labor (“DOL”) has issued employer guidance on FMLA and COVID-19.  Short-term disability benefits may be relevant depending on your organization’s short-term disability plan or the State’s statutory short-term disability benefits.

Note that if an employee contracts COVID-19 while at work or performing work for their employer (particularly employees who are health care providers and first responders), depending on particular State law, they may be able to assert a claim if their illness or injury “arose out of and in the course of employment,” and then the employer may be liable to provide workers’ compensation insurance.

Q:  Do I have to pay wages to an employee who is out sick due to COVID-19?

A:  It depends.  Exempt employees must be paid for any portion of any week in which they work (so if an exempt employee works part of a week but then calls out sick due to COVID-19, that employee must be paid for the full week).  Nonexempt employees are only required to be paid for work actually done although employers may allow employees to use paid sick leave if they have it or paid time off if they do not have it.  Certain State or local jurisdictions may mandate paid sick leave.  Due to the extenuating circumstances of this epidemic, an employer might decide, depending on the circumstance, to provide a more flexible paid sick leave policy during this period of time.  The U.S. Department of Labor has recently issued employer guidance on COVID-19 and the federal Fair Labor Standards Act.

Q:  If an employee gets COVID-19, may an employer inform other employees so they can seek appropriate medical attention?

A:  Employers may and should inform employees that they have been exposed to the virus, but may not disclose to employees the identity of, or information that would reveal the identity of, the employee has contracted the virus due to federal, State and local laws requiring employers to maintain the confidentiality of employee medical information.  Employers should be vigilant about this, ensuring managers are trained that they are required to keep confidential any and all medical information they learn regarding an employee.

By law, any medical records must also be kept confidential and should be securely locked in the workplace with access only to those managers with a “need-to-know” in order to comply with the ADA and other disability discrimination and reasonable accommodation laws.

Q:  May an ADA-covered employer ask an employee to disclose if they have a weakened immune system or chronic health/respiratory condition that the CDC says could make him or her more susceptible to complications of influenza?

A:  No, according to the EEOC guidance.   An inquiry asking an employee to disclose a compromised immune system or a chronic health condition is disability-related because the response is likely to disclose the existence of a disability.  The ADA does not permit such an inquiry in the absence of objective evidence that pandemic symptoms will cause a direct threat.  Such evidence is completely absent before a pandemic occurs.

Q: During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?

 A:  The Equal Employment Opportunity Commission (EEOC) considers taking an employee’s temperature to be an unlawful “medical examination” under the ADA.  The ADA prohibits employee medical examinations unless they are “job-related and consistent with business necessity.” Generally, a medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: an employee’s ability to perform essential job functions will be impaired by a medical condition, or an employee will pose a direct threat (i.e. a significant risk of substantial harm even with reasonable accommodation) due to a medical condition.

On March 11, 2020, the World Health Organization (WHO) declared COVID-19 a pandemic.  The EEOC’s guidance on pandemics says that if pandemic symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009 (as they have with COVID-19), or if a pandemic becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.

The EEOC notes that the U.S. Department of Health and Human Services, the WHO and CDC are the definitive authorities on whether there is a pandemic.  Such an assessment by WHO, HHS or the CDC that the pandemic is significantly more severe than a seasonal flu could provide the objective evidence needed for a disability-related inquiry or medical examination of an employee as a “direct threat.”  The EEOC further notes: “During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.”  Employers should be aware, however, that some people with COVID-19 may not have a fever.

While U.S. employers may have more flexibility to conduct such “medical examinations” under the ADA such as taking employees’ temperature now that the WHO has declared a pandemic, employers should remain mindful of State and local public health assessments about how widespread the virus is as well as State and local anti-discrimination laws that may have more stringent standards for determining when an employer may require medical examinations of asymptomatic employees to identify those a higher risk of COVID-19 complications, and confer with their legal counsel.

Q:  What Contingency Plans Should We Be Making for Alternative Work Arrangements, Less Contact and Staffing Coverage?

 A: Here are a few considerations:

• Consider allowing flexible work arrangements like allowing employees to work from home or allowing them to start and end work at staggered times or work in shifts.

• Where employees work in a crowded office area or open plan, determine if you can arrange for less than half of the employees to come to the office at a given time. Consider advising employees to take the elevator to the office in smaller numbers and not taking the elevator when it is crowded or mass public transportation at rush hour or when a subway or bus is crowded.

• Ensure that each employee in the office keeps a distance of at least 6 feet from one another.

• Cross-train employees now so that your organization has coverage if any employees are out sick.

Q:  If We Want to Institute A Temporary Telecommuting Policy, What Should We Consider?

A:  If you decide to allow employees to work remotely from home on a temporary basis during this period, here are just a few things to consider: 1) determining which positions are amenable to remote work; 2) whether you have technology that would allow employees to participate in meetings by video-conference; 3) setting forth guidelines for timekeeping/recording hours worked, considering whether to implement time-tracking software, and ensuring that nonexempt employees are informed about not working overtime without advance permission from supervisors or doing “off-the-clock” work; 4) implementing data security/data privacy measures to protect the privacy/confidentiality of data on laptops and electronic devices; 5) determining whether your worker’s compensation policy will cover at-home work for office workers; and 6) considering a telecommuting agreement with employees.  Confer with your legal counsel on any policy or agreement you develop and data security/data privacy measures to be implemented.

Q:  Can an Employer Be Legally Liable if An Employee Contracts COVID-19 at Work or on a Work-Related Assignment or Through Work Passes the Illness on to Someone Else?

A:   The federal Occupational and Safety Health Act’s (OSHA) “general duty clause” requires employers to provide a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm, and failure to do can be a violation of OSHA Act resulting in monetary damages.  OSHA will look to the CDC’s own recommendations to employers, National Institute of Occupational Safety and Health, and other such agencies in determining whether an employer violated the “general duty clause” and failed to take appropriate steps to keep employees safe from recognized hazards. Employers should follow the precautionary steps recommended by the CDC, OSHA and State and local public health agencies to minimize the risk of a potential negligence claim (or potential workers’ compensation claim, depending on the jurisdiction).

OSHA recommends that employers develop an Infectious Disease Preparedness and Response Plan, Basic Infection Prevention Measures, develop policies and procedures for prompt identification and isolation of sick people, if appropriate, develop and implement workplace flexibilities and protections, and workplace controls, among other things.  OSHA also recommends moving potentially infectious people to a location away from workers, customers, and other visitors until they can be removed from a worksite, and taking steps to limit spread of the respiratory secretions of a person who may have COVID-19, like providing a face mask, if feasible and available, to that person and asking them to wear it, if tolerated. Confer with your legal counsel about developing these plans and procedures.  OSHA prohibits retaliation against an employee for complaining of a safety or health issue, which may include an employee refusing to work in the office or travel to an area due to fear if their fear is reasonable and fact-based.

Q:  What Should We Do If There is “Water-Cooler” Talk Expressing Fear of Chinese or Asians or Disparaging Comments Based on Race or National Origin in View of the Virus’ spread from China? 

A:  Because the COVID-19 epidemic originated in China and has spread to South Korea and Japan, employers and their managers need to be alert to and quash any statements or bias expressed by employees against Asians or others based on a fear that they carry the virus.  Employers may also want to consider posting CDC’s own Fact Statement about the virus to educate employees.  Failure of a manager to address such comments could make an Asian employee feel targeted or ostracized based on their race, national origin or ethnicity and negatively impact employee morale, and might also subject an employer to claims of having created or condoned a hostile work environment based on race, national origin or ethnicity.  As we know, this virus has spread globally—to Europe, Australia, and now the U.S., and affects all of us.

Q:  If a vaccine is developed, may employers require all employees to be vaccinated against the novel coronavirus?

 A:  Employers must provide employees an opportunity to opt-out from mandatory vaccinations if there is a medical reason for an employee to do so or their religion prohibits it, in order to comply with laws prohibiting workplace discrimination based on disability and religious beliefs and practices.  At this point, no vaccine yet exists.  The EEOC advises that generally employers should encourage employees to get vaccinated rather than mandating it.  There may be exceptions, of course, for federal and State regulations requiring vaccinations for certain health/safety positions.

Q:  Where Can Employers Get More Information?

A:  Employers are advised to:1) sign up for alerts from the CDC; 2) regularly check CDC’s website for additional information, including the interim employer guidance and an easy-to-follow chart, an interim guidance for schools; 3) check the website of their State and local public health departments for updates[2]  (and the World Health Organization); 4) review publications and updates from the EEOC, US Department of Labor, OSHA, and State and local anti-discrimination agencies for the latest guidance on handling COVID-19 in the workplace.

Conclusion

While we answer some questions that may arise for employers, it’s important to emphasize that employers should use good common sense about what precautions to take, without causing alarm in the workplace. So, take a deep breath, and start implementing your plans to keep your organization’s employees safe, keep your operations running, and minimize your legal risk.

For questions about this Alert or creating workplace plans or policies to plan for COVID-19 or for employee training, please contact Lisa Brauner, Esq., Head of Perlman & Perlman LLP’s Employment Law Department, lisa@perlmanandperlman.com, 212-889-0575.

[1] CDC reports that the virus is thought to spread mainly from person-to-person between people who are in close contact with one another (within about 6 feet) through respiratory droplets produced when an infected person coughs or sneezes, and that the droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs.

[2] For NY State and NYC see below (contact us for information concerning other States)

New York employers and businesses can find guidance from the New York State Department of Health on COVID-19 and how to minimize the risk of spread.   New York State has also set up a hotline (1-888-364-3065) for information about COVID-19.

New York City Department of Health has also issued an updated fact sheet about COVID-19 and other interim safety/health guidance for businesses, congregate settings (like workplaces, schools, assisted living facilities, nursing homes, homeless shelters, religious services, community gatherings, large events, etc.), schools, universities, and non-healthcare settings on disinfecting and preventative measures, in a variety of languages, as well as posters like “Cover Your Cough.”   It also provides a NYC website for COVID-19 updates.  New Yorkers can also text COVID to 692-692 to get regular updates on the latest developments regarding COVID-19.   NYC is advising those with chronic lung disease, heart disease, cancer, diabetes, or a weakened immune system to avoid unnecessary events and gatherings, and if a New Yorker has family or friends who have one of these conditions, not to visit them if the New Yorker feels sick.

California (Los Angeles/San Francisco): California Department of Public Health, Updated Guidance on Schools and Large Events,  Los Angeles County Department of Public Health

LA County residents can also call 2-1-1, Workplace Posters

San Francisco Department of Public Health

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Effective January 7, 2020, pursuant to NYLL Section 203-E, employers of all sizes within New York State must notify employees of their rights under the law and remedies.  For those employers with an employee handbook, the notice of rights and remedies must be contained in that handbook.  The NYS Department of Labor has not issued any guidance yet, including whether independent contractors are encompassed by this law as “employees” and whether they must receive written notice of rights as well.

Employees may sue in court for violation of the law.  Violation of the law can result in damages, including, but not limited to, back pay, benefits and reasonable attorneys’ fees and costs for a prevailing plaintiff, injunctive relief against an employer, reinstatement; and/or 100% liquidated damages of the award for damages unless an employer proves a good faith basis to believe that its actions were in compliance with the law.  The law also contains civil penalties against employers that retaliate against an employee for complaining of a violation of this law.  The New York State Labor Law amendment does not exempt religious or faith-based organizations (see below for further information).  It also does not define “employee” and so it is unclear whether the mandated employee notice must also be provided to an entity’s independent contractors who are now covered by NYSHRL antidiscrimination provisions.

The justification for the law is that the federal Affordable Care Act (ACA) recently required that health insurance plans cover FDA-approved birth control methods without out-of-pocket costs to employees. Some for-profit employers have attempted to prevent employees from accessing health insurance plan coverage of FDA-approved birth control without out-of-pocket costs on the grounds that this health insurance benefit conflicts with an employer’s personal beliefs. As a result, over 100 federal lawsuits have been filed by employers to deny employees this benefit, including employers operating in New York State. New York State’s legislature seeks to ensure that employees’ decisions about pregnancy, contraception, and reproductive health are protected under state law from employment discrimination.

This amendment to New York State’s Labor Law prevents an employer from discriminating against employees based on reproductive health decisions, regardless of how the employer became aware of those decisions. Despite medical confidentiality protections under The Health Insurance Portability and Accountability Act (HIPAA), an employer does receive health insurance utilization summaries, which are distributed to each employer on a regular basis. In these reports, in some cases, an individual’s identity may be deduced by an employer based on the nature of the service and composition of the insured class reported in the summaries, and the State does not want employers using information about an employee’s reproductive health decision as a basis for discriminating against an employee or taking a negative employment action against them.

The State Labor Law amendment follows a recent amendment to New York City’s own Human Rights Law, which prohibits employers with four or more employees in New York City, labor organizations or employment agencies, from discriminating against or harassing job applicants, employees, interns, and independent contractors without employees, based on their sexual and reproductive health decisions. [1]

Note to religious/faith-based nonprofit organizations:  The State Labor Law and New York City Human Rights Law amendments are currently being challenged in federal court in New York by Evergreen Association, Inc., a nonprofit that operates pregnancy centers, and its founder and President, Chris Slattery, on the grounds that the law violates their constitutional rights to freedom of speech, freedom of association and due process, and that the term “reproductive health decision-making” is undefined, making that law unconstitutionally vague.  Stay tuned for developments in this litigation as there is no exemption for religious or faith-based organizations under the New York State Labor Law. While New York State and New York City Human Rights Laws do contain religious organization exemptions from those laws (though NYCHRL does not define a “religious organization”), those exemptions are nonetheless limited in their scope.[2]  Religious organizations, in particular, should consider the impact of the amendment to New York State’s Labor Law and consult with their legal counsel about their rights and obligations.

What Should an Employer Do Now?  Provide a written notice of employee rights and remedies as required and review and update all EEO and other policies prohibiting discrimination and employment-related hiring materials.

[1] New York City’s Human Rights Law defines “sexual and reproductive health decision” as “any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions.” Services include, but are not limited to:

• Fertility-related medical procedures;
• Sexually transmitted disease prevention, testing, and treatment; and
• Family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion.

[2] NYC’s Human Rights Law does not prohibit religious organizations from limiting employment or giving preference to persons of the same religion or denomination or from making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained.

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Salary Threshold Amounts: For many employers, the new increase to the federal salary threshold level for determining whether an employee is exempt from overtime pay requirements under the federal Fair Labor Standards Act (FLSA) does not impact them because the labor laws of the States in which they employ workers already require higher salary thresholds than the new federal salary threshold of $684 per week ($35,568 annually).  The FLSA and the New York State Minimum Wage Act (MWA) exempt employees who work in a bona fide administrative and executive capacity from the overtime pay requirements of the FLSA and MWA.

For example, in New York State, effective 12/31/19, the salary threshold for administrative and executive exempt employees will increase as follows:

• All New York City employers–Salary threshold: $1,125 per week ($58,500 annually)
• Long Island and Westchester: $975 per week ($50,700 annually)
• Rest of New York State: $885 per week ($46,020 annually)

Notification Requirements:  Remember that New York State requires employers to provide employees with written notice of any increase to their rate of pay at least 7 days before the rate change, unless the new pay stub reflects those changes (then written notice is not needed—except in the hospitality industry).

Avoid Common Mistakes:  Don’t make the mistake of assuming that all salaried employees are exempt from overtime pay requirements.  Employees are not automatically exempt from overtime pay laws even if their weekly pay meets or exceeds the respective federal and State salary thresholds because they must also meet a “job duties” test to determine exempt status for “executive” or “administrative” “white-collar” exemptions from overtime pay.

Nonprofit particular:  Remember that the FLSA does not apply to nonprofit organizations in the same way that it applies to for-profit businesses for those nonprofits to be covered by the law.  Specifically, nonprofit charitable organizations may be a “covered enterprise” if:  1) they engage in commercial activity resulting in sales or business done resulting in $500,000 annual gross revenues  (such as operating a gift shop in a museum or providing veterinary services for a fee) engaged in commerce or the production of goods for commerce where they have two or more employees; or 2) they are a hospital, business providing medical or nursing care for residents, school, preschool, college, and government agency.

Note that individual employees not covered under an “enterprise” basis may independently be covered under the FLSA regardless of the number of employees if they are engaged in “interstate commerce” or the production of goods for interstate commerce (which could encompass something as simple as handling credit card transactions, making interstate phone calls or sending and receiving emails across state lines).

Regardless of whether the federal FLSA applies, most nonprofit organizations will be covered by their State’s wage/hour laws (note:  in some jurisdictions like New York, a new “nonprofitmaking institution” may elect to be exempt from coverage under a State minimum wage order and State overtime pay requirements so long as they agree to pay the statutory minimum wage).

What Should Employers Do Now?   Ensure they update pay rates  accordingly, review worker classification status carefully together with updated job descriptions, and provide required postings and notices. Train managers on these legal updates. The amounts that employers can claim for tip, meal and lodging credits, and deduct for uniform allowances also changed on December 31st so employers should check the applicable New York minimum wage orders for those changes.

Please contact Lisa M. Brauner, Perlman & Perlman LLP, lisa@perlmanandperlman.com, 212-889-0575, if  you have any questions about whether your employment practices are legally compliant.

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