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As the country continues to grapple with a global pandemic that now seems to be never-ending, businesses everywhere are waking up to realize that the calming of the COVID-19 employment issues over the summer has come to an end. As cases rise exponentially in all 50 states as we head into the winter months, the number of employment issues related to COVID-19 will also increase dramatically. 

For these reasons, it is important that we return to the employment law basics that were covered this prior spring, while highlighting the many lessons we have learned along the way. As COVID-19 matters and concerns continue to hinder the working environment of every business, it is important that you reference this review to guide you through these tough issues and questions. 

“I need to be off work (or work from home) because of COVID-19.”

The most common scenario for businesses is when an employee sends an email to their manager saying, “I need to be off work (or work from home) because of COVID-19.” Let’s use this scenario to analyze the proper legal responses. The first question from the business’ attorney or HR professional should be a simply, open-ended question of “why.” 

1. “I just do not feel safe coming to work with the increase in cases in our state.”

In these cases, one of the proper employer responses will contain these elements. First, the business is doing everything in its power to comply with all OSHA and state/local health orders to minimize the risk of COVID-19 exposure to employees. Second, the fear of COVID-19 is not sufficient by itself to be off work. Therefore, third, the employer can either allow the employee to remain off work, unpaid, or it can discipline the employee up to and including termination. 

2. “I have been exposed to someone who has tested positive,” or “I am experiencing COVID-19 related symptoms.”

In these cases, the employer is going to analyze whether the employee is eligible for paid time off under the Families First Coronavirus Response Act (“FFCRA”) and, most specifically, the Emergency Paid Sick Leave Act (“EPSLA”). 

Remember, an employee is eligible for paid leave if they have to be out for one of the following reasons: 

1. The employee is subject to a coronavirus quarantine or isolation order from a government entity,
2. The employee has been advised by a licensed healthcare provider to self-quarantine due to coronavirus,
3. The employee is experiencing coronavirus symptoms and seeking a diagnosis from their healthcare provider,
4. The employee is caring for an individual, such as a child, subject to a coronavirus quarantine or isolation order or advised by a healthcare provider to self-quarantine due to coronavirus,
5. The employee is caring for their child due to coronavirus-related closure of school or childcare, or
6. The employee is experiencing any other substantially similar condition.   

Full time employees are eligible for up to 80 hours of paid leave if one of the above 6 reasons is met, and part time employees are entitled to paid sick leave equal to the number of hours they work on average in a two-week period. 

For leave reasons (1)-(3) above, both full and part time employees earn their full regular rate of pay, but it is capped at $511/day or $5,110 in the aggregate. For leave reasons (4)-(6) above, both full and part time employees 2/3 of their regular rate of pay, which is capped at $200/day or $2000 in the aggregate. 

It is important to remember if employers maintain the proper records, as partially discussed below, they will receive a tax credit from the federal government, up to the aggregate, for each employee who receives paid time leave. Also, employers cannot require employees to use or exhaust other forms of paid leave prior to using this paid sick leave. 

If your business does not have a COVID-19 leave policy and paid leave application form, we can provide you with these deliverables. 

3. “I cannot come to work as I have to watch my child (or help with their homeschooling) since their school is closed because of COVID-19.” 

In the event of school closure or the unavailability of child care for a COVID-19 related reasons, the possible paid leave for the employees falls under both EPSLA, above, and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). An employee must work for an employer for at least 30 days before becoming eligible for EFMLEA leave. 

The EFMLEA requires that employers provide leave to employees who are unable to work (or telework) because the employee is caring for a son or daughter under 18 due to COVID-19 related closure of school or childcare. 

The first 10 days of this leave is unpaid. However, employees can use reason (4) or (5) from EPSLA for paid leave during these initial 10 days, at the rate established under EPSLA. Thereafter, the employee receives 10 weeks of paid leave. The rate of pay is at 2/3 of their regular rate with a cap of $200/day and $10,000 in the aggregate. 

As with EPSLA, employers will receive a return on these payments, up to the aggregate, in the form of tax deductions, as long as they retained the requisite paperwork, as discussed below. 

Finally, paid leave is not available to those employees who can work from home. Therefore, when possible, employers should explore ways for employees to work remotely. 

4. “I cannot come to work as I have an underlying medical condition that could be made worse because of COVID-19. ” 

Another common scenario encountered is when an employee presents with a doctor’s note stating that they should be permitted to telework because of an underlying disability that could be exacerbated by COVID-19. 

In these cases, employers must analyze the employee’s request under the limits of the Americans with Disabilities Act (“ADA”), which includes follow up with the physician requesting any additional information necessary to (1) determine whether the employee has an underlying disability, and (2) whether the same could actually be exacerbated by COVID-19. 

Assuming both of these questions to be in the affirmative, employers should engage in the interactive process to determine what reasonable accommodations could be made to allow the employee to still work, despite the possible exacerbation. For example, the employer could make available to the employee additional, more protective PPE, such as N95 masks. As an alternative, if possible, employers should evaluate allowing the employee to telework. Assuming none of the foregoing options are reasonable, employers can evaluate providing an unpaid leave of absence. 

What happens if one of my employees used all of their leave time under the FFCRA? 

Under the FFCRA, each employee is only entitled to a set number of hours depending on whether the leave is sick leave or child care leave, as described above. This is the limit of what the IRS will consider for a tax break for the employer’s 2020 taxes. Therefore, once an employee uses all of their leave under EPSLA and EFMLEA, the employer has three options. 

First, assuming it is safe to do so, the employer can require the employee to come to work or face disciplinary action. Second, the employer can allow the employee to remain out under sick or child care leave and still pay the employee, but the employer will not be reimbursed these payments in the form of tax breaks. Third, the employee can remain off work unpaid, at the employer’s discretion. Regardless of which option the employer chooses, it should implement a similar policy for all employees.  

I would like to receive a tax benefit for payments made under the FFCRA, what documentation do I need to maintain to give to my accountant?  

In order to receive tax credits next year for paid leave under the FFCRA, businesses are required to maintain certain documentation to prove the reason for the paid leave and to document the amount of paid leave given. These documentation requirements are as follows: 

1. Employee’s name;
2. Date(s) for which leave is requested;
3. COVID-19 qualifying reason for leave; and
4. A statement representing that the employee is unable to work (or telework) as a result of the COVID-19 qualifying reason. 

In addition, if the employee is experiencing symptoms of COVID-19 and seeking medical diagnosis or is caring for someone experiencing symptoms of COVID-19, the employee must additionally provide their employer with either:

1. The name of the government entity that issued the Quarantine or Isolation Order to which the individual being cared for is subject; or
2. The name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19. 

If the employee is caring for a child whose school or childcare is closed, the employee must additionally provide their employer with:

1. The name of the son or daughter being cared for;
2. The name of the school, place of care, or childcare provider that has closed or become unavailable; and
3. A statement representing that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave (this includes spouses and is a request where employers can nail down specifics). The DOL issued additional guidance that this payment should not be made if there is another suitable parent or individual residing inside the house. 

An employer is required to retain all documentation relevant to FFCRA leave for a period of no less than four (4) years (best practice is 7 years), regardless of whether leave was granted or denied. Additionally, if an employee provides any oral statement(s) to support their time off, the employer is required to document and maintain that information for four (4) years. 

Wow, this was a lot of information. Should I memorialize this COVID-19 leave information in the form of a policy that I can give to my employees? 

Employers should absolutely implement a COVID-19 leave policy that outlines the requirements above and informs employees on how to apply for leave. BMD can help you draft and implement this policy, and it can provide you with a COVID-19 leave request form that employers can use to track leave and maintain the information for their accountants. In addition, under the FFCRA, employers are required to post certain COVID-19 leave posters, as they do for discrimination and minimum wage requirements. 

My business provides healthcare services, are my employees automatically exempt from leave under the FFCRA? 

If your business is a healthcare provider or employs healthcare providers, some of them may be exempt from paid leave. Specifically, these individuals are as follows: 

1. MDs/DOs, Podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers and physician assistants.
2. Any other person who is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.
3. Employees who do not provide direct heath care services to a patient but are otherwise integrated into and necessary to the provision those services—for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition—are health care providers. 

However, under additional guidance, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, secretaries, and billers/coders are not considered exempt health care providers, even if they work at a hospital of a similar health care facility.   

What are the consequences if my business does not follow or correctly implement the FFCRA leave provisions? 

Under the FFCRA, if a business does not correctly implement or otherwise denies valid leave to an employee, such violations are considered violations of the Fair Labor Standards Act, and the employer can be liable for double or treble damages, on top of payment of the employee’s attorneys’ fees and costs. The damages can add up quickly. In addition, the U.S. Department of Labor may conduct audits and implement additional penalties on the employer. 

I heard the FFCRA leave allowances terminate at the end of the year, is this correct? 

When the FFCRA was originally drafted in the spring of 2020, Congress implemented a provision that the FFCRA leave benefits expire on December 31, 2020. After this date, employers do not need to grant paid sick or childcare leave. As of November 17, 2020, this expiration date has not been extended.  

However, President-Elect Biden is pressuring Congress to extend the FFCRA leave protections or otherwise implement new paid leave policies. We anticipate that Congress will act in early-mid December to either extend the FFCRA leave protections or otherwise implement similar policies. Therefore, employers must anticipate compliance with the FFCRA well into the new year. 

Can I require my employee to get a COVID-19 test? 

Under newly issued guidance from the EEOC, employers are permitted to require their employees to get a COVID-19, either pursuant to a routine employee testing program or upon exposure. However, please note that different private insurance payers may limit coverage for COVID-19 testing to exposure or symptoms only, as opposed to a routine testing program.  

Does BMD have additional resources that I can review pertaining to other areas impacted by COVID-19? 

Yes! BMD has additional resources that you may helpful at the following links:

https://www.bmdllc.com/resources/blog/ffcra-update-implementation-date-accelerated-from-april-2-to-april-1/

https://www.bmdllc.com/resources/blog/record-keeping-requirements-to-receive-ffcra-irs-tax-credit/

https://www.bmdllc.com/resources/blog/how-do-i-pay-employees-for-covid-19-telework/

https://www.bmdllc.com/resources/blog/relief-for-employers-from-unemployment-filings/

https://www.bmdllc.com/resources/blog/accommodating-the-return-to-work/

https://www.bmdllc.com/resources/blog/back-to-work-employer-documents/

https://www.bmdllc.com/resources/blog/return-to-school-stress-amid-covid-19/

https://www.bmdllc.com/resources/blog/revised-department-of-labor-ffcra-guidance-effective-september-16-2020/ 

As questions, concerns, and legal guidance continue to evolve with the changing times, it is essential for employers to stay informed. If you need assistance with any issues arising from the COVID-19 pandemic, please contact Bryan Meek at 330.253.5586 or bmeek@bmdllc.com, or feel free to contact any member of BMD's Employment & Labor practice group.