FFCRA Leave Not Extended

The Federal Families First Coronavirus Response Act (“FFCRA”), which required that employers with fewer than 500 employees provide sick and family leave benefits for certain COVID-19 related reasons, expired on December 31, 2020. Specifically, the FFCRA’s sick and family leave provisions were not extended as part of the pandemic relief package that was signed by the President on December 27. As a result, employers will not be required to provide paid leave under the FFCRA after December 31, 2020.

Even though the FFCRA’s leave provisions were not extended, the relief package extends the FFCRA tax credit, which reimburses employers for the cost of providing FFCRA leave, through March 31, 2021. Therefore, beginning on January 1, 2021, employers are no longer required to provide FFCRA leave; however, covered employers who voluntarily offer such leave may utilize payroll tax credits to cover the cost of benefits paid to employees through the end of March. The relief package does not change the qualifying reasons for which employees may take leave, the caps on the amount of pay employees receive, or the FFCRA’s documentation requirements.

The law also does not change the amount of leave under the FFCRA. Under the FFCRA, full time employees were entitled to a one-time allotment of 80 hours of paid sick leave and 12 weeks of expanded family medical leave. Therefore, an employer is likely not entitled to a second tax credit for an employee taking leave in 2021, if that employee took leave in 2020.

Nevertheless, employers should be mindful that some states and local governments have enacted COVID-19 leave laws that may not have expired at the end of the year.

COVID-19 Vaccines—Can and Should Employers Mandate Them?

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) published its guidance related to the COVID-19 vaccine. While the EEOC guidance implies that employers may generally require their employees to receive the COVID-19 vaccine, there are several legal and practical considerations that employers should contemplate when determining whether a mandatory vaccination policy is appropriate for its business. These considerations include:

• Whether a mandatory vaccination policy would be job-related and consistent with business necessity based upon the nature of the employers’ workforce and business;

• Any collective bargaining ramifications for employers with a unionized workforce as the National Labor Relations Board has previously ruled that a flu prevention policy that required employees receive a flu vaccine was a mandatory subject of collective bargaining unless waived;

• What is a reasonable accommodation at the work place for individuals who advise they cannot take the vaccine because of a disability under the Americans with Disabilities Act or an employee’s sincerely held religious beliefs pursuant to Title VII of the Civil Rights Act;

• The general duty clause under the Occupational Safety and Health Act, which requires employers to provide a safe and healthy workplace for their employees versus potential worker’s compensation claims from employees who suffer an injury or an adverse effect after receiving a mandatory vaccine, as well as employees who contract COVID-19 at work following the employer’s refusal to mandate the vaccine;

• If electing to move forward with a mandatory vaccination policy, employers need to determine whether they want to have employees receive the vaccine through a pharmacy or health care provider as opposed to providing the vaccines directly to the employees or through a third party that the employer has a contract with so as to avoid the restrictions on collecting medical information; and

• If an employer requires that employees submit proof of receipt of the COVID-19 vaccine prior to re-entering the workplace, the employer should warn employees that they should not provide any medical information when submitting their proof of receipt of the vaccine.

Please contact your Allen Norton & Blue attorney for further guidance on your company’s individualized situation and whether your company could or should require COVID-19 vaccines for your employees.

Return to Work Guide

A Package of Policies, Procedures, Training, and Templates

We are proud to announce our Return to Work Guide developed by ANB attorneys. Included in this Guide are policies such as Telework, Social Distancing, BYOD (Bring Your Own Device), Facemask, and more.

We know that returning to work following COVID-19 presents a lot of uncertainty and questions, such as: Are you unsure about how to announce to your employees that someone has tested positive for COVID-19? Do you need a COVID-19 symptom questionnaire? What about EFMLA or PSLA election forms? Included in the Guide are FAQs and timely training materials to help guide you through the reopening process.

Please contact your Allen Norton & Blue attorney to obtain your Return to Work Guide

CDC Provides New Interim Guidance for Critical Infrastructure Workplaces

On April 8, Centers for Disease Control and Prevention (CDC) posted what it terms as “Interim Guidance for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19”.

From the CDC page:

This interim guidance pertains to critical infrastructure workers, including personnel in 16 different sectors of work including:

• Federal, state, & local law enforcement

• 911 call center employees

• Fusion Center employees

• Hazardous material responders from government and the private sector

• Janitorial staff and other custodial staff

• Workers – including contracted vendors – in food and agriculture, critical manufacturing, informational technology, transportation, energy and government facilities

The page gives practical advice such as not sharing headsets, increasing air exchanges in rooms, and social distancing, and states:

Critical Infrastructure workers who have had an exposure but remain asymptomatic should adhere to the following practices prior to and during their work shift:

• Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.

• Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.

• Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.

• Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.

• Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

For the full Guidance, please refer to the CDC page.

Department of Labor Regulations on FFCRA (Families First Coronavirus Response Act)

The Department of Labor has just issued its regulations to implement the Families First Coronavirus Response Act. The rules and the preamble total 124 pages and we are in the process of analyzing those. We will be sending additional guidance out in the next day or so.

 In the meantime, one question we have received regularly in the last few days is whether the various stay-at-home or safer-at-home orders constitute quarantine orders for purposes of the Emergency Paid Sick Leave benefit (providing up to 80 hours of pay for full-time employees). There hadn’t been a clear cut answer to that question as Florida law defines “quarantine” and “isolation” orders very narrowly, but the signals from the federal and state government suggest that it would constitute a qualifying reason for the EPSL benefit. We now have guidance on the issue from the DOL. The regulations make it clear that leave needed to comply with these orders, such as the Governor’s order issued today, does indeed qualify as a reason to take leave under the Emergency Paid Sick Leave Act (specifically, Reason #1 – “The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19”). In that respect, the DOL has defined quarantine/isolation very broadly as follows:

 “Subject to a Quarantine or Isolation Order. For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.” 29 C.F.R. 826.10.”

 As such, unless the employee is an excluded health care provider or emergency responder or unless the employee can telework, he or she will be entitled to the Emergency Paid Sick Leave benefit for leave to comply with the state and local executive orders.

U.S. Department of Labor Fact Sheet and Expanded Q&A

The Families First Coronavirus Response Act (FFCRA) is set to take effect on April 1, 2020, and will expire on December 31, 2020 and applies to private sector employers with fewer than 500 employees and all public sector employers. On March 24, 2020, the Department of Labor ("DOL") issued a Fact Sheet for Employers and a Questions and Answers (Q&As) document regarding the Families First Coronavirus Response Act ("FFCRA"). On March 26, the DOL released an expanded set of Q&As, which added questions 15-37 concerning the FFCRA. Below is a summary of the pertinent information contained in the DOL's new guidance.

Documentation

Employers are entitled to request information and obtain documentation supporting an employee's need for leave under the FFCRA and establishing that the need meets one of the qualified reasons. (See Q&A Nos. 15-16). This documentation may include a copy of the employee's Federal, State or local quarantine or isolation order, written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19, or a notice indicating the employee's child's school, place of care, or childcare provider is closed. If the employer intends to claim a tax credit under the FFCRA for payment of sick leave wages, it should retain this documentation for its records.

Teleworking

The DOL also confirmed that employers may offer employees the option to telework but are not required to do so. (Q&A No. 17). Even if telework is offered, paid leave under the FFCRA is still available if the qualifying reason for leave prevents the employee from performing the telework. (Q&A Nos. 18-19). Significantly, the DOL also advises that the employer and employee may agree to adjust the employee's normal work schedule to allow for telework and, if so, then there is no need for the employer to provide leave. Under this guidance, the key takeaway is that both the employer and the employee need to agree to the arrangement. The specific wording from the DOL is as follows:

"If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule." (Q&A No. 18).

Additionally, if an employee is able to telework while caring for a child who is home due to their school or place of care being closed due to COVID-19, paid sick leave and expanded family and medical leave is not available.

Intermittent Leave

Until now, a point of confusion has been whether an employee could take intermittent leave under either of the two types of leave provided. The DOL explained that employers may allow employees to take Emergency Paid Sick Leave (EPSL) or E-FMLA leave intermittently under the FFCRA while teleworking. (Q&A Nos. 20-22). Specifically, the DOL advises that, if an employee is teleworking, intermittent leave is available upon agreement between the employer and employee. (Q&A No. 20). If not teleworking, employees are required to take EPSL in full-day increments if the leave is for any qualifying reason other than needing to care for a child whose school/childcare has closed. (Q&A No. 21). In those instances, once the employee begins taking EPSLA leave, he or she must continue to take that leave until it is either exhausted or the need for leave is no longer present. Notably, if the employee does not exhaust the full 80 hours (full-time employees) of EPSLA before the need for the leave is no longer present, he or she can still use the balance if another qualifying reason arises prior to December 31, 2020.

Similarly, if the employee is not teleworking, and the need for EPSL leave or E-FMLA leave is due to a child's school/childcare facility closing, then intermittent leave is only available if the employer and employee agree. (Q&A Nos. 21-22). However, if the employer and employee can agree to a change in the employee's schedule, leave is not available. The DOL encourages employers and employees to collaborate to achieve maximum flexibility.

Business Closures and Furloughs

The DOL confirmed that, if an employee is sent home due to a business closure (caused by economic reasons or pursuant to a Federal, State, or local directive), the employee is not entitled to EPSL or E-FMLA leave. (Q&A Nos. 23-25, 27). This is true regardless of whether the business closed before or after the FFCRA's effective date. However, as noted by the DOL, employees may be entitled to unemployment compensation in that situation. The same is true for furloughs. (Q&A No. 26).

Multi-employer Collective Bargaining Agreement

Employers may satisfy their obligations under the E-FMLA by making contributions to a multi-employer fund, plan, or other program in accordance with their existing collective bargaining obligations. (Q&As 36-37). These contributions must be based on the amount of E-FMLA leave to which each of employee is entitled under the Act based on each employee's work under the multi-employer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, employers may also choose to satisfy their obligations under the Act by other means, provided they are consistent with their bargaining obligations and collective bargaining agreement.

Other Considerations

Employees may not use EPSL or E-FMLA leave to supplement a reduction in their scheduled work hours. However, an employer and an employee may agree to use existing PTO to bring the employee's pay up to 100% whenever the employee takes EPSL or E-FMLA leave in circumstances where they are only entitled to 2/3 pay. (Q&A Nos. 31-33).

Employees who elect to take EPSL or E-FMLA leave are entitled to continued group or family health coverage during their leave on the same terms as if they continued to work.

Employers are free to provide benefits in addition to those required by the FFCRA; however, employers will not be eligible for a tax credit for those amounts in excess of the FFCRA's statutory limits. (Q&A No. 34). The Internal Revenue Service provides additional guidance on relevant tax credits here.

Department of Labor Requires New Poster for Covered Employers

On March 25th, the Department of Labor ("DOL") released a Workplace Poster for employers regarding COVID-19 and the Families First Coronavirus Response Act ("FFCRA" or "the Act").  Pursuant to the FFCRA, employers must post a notice to current employees informing them of their rights under the Act.  All covered employers are required to post a notice of the FFCRA requirements in a conspicuous place on its premises where it is visible to all current employees. If employees are teleworking, an employer may satisfy this requirement by emailing or direct mailing this notice to all of its current employees or posting this notice on an employee information internal or external website. Employers are not required to post this notice in multiple languages. The poster can be found online at:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.

U.S. Department of Labor Provides more Q&A Guidance - March 30, 2020

On March 28, 2020, the Department of Labor ("DOL") provided an additional update to its Q&As, adding questions 38-59 regarding the Families First Coronavirus Response Act ("FFCRA"). Below is a brief summary of the relevant information provided in the most recent update.

Definitions

The DOL states that, assuming you are a "covered employer," eligible employees are defined using the definition provided by the Fair Labor Standards Act ("FLSA"). (Q&A 38). The DOL clarifies those who are qualified employers. (Q&A No. 39). The DOL provides a definition for "son or daughter" for purposes of FFCRA leave benefits. (Q&A No. 40). Specifically, the DOL provides that a "'son or daughter' is your own child, which includes biological, adopted or foster child, your stepchild, a legal ward, or a child for whom you are standing in loc parentis." Of note, the DOL clarified that an adult child may also qualify where the child has a disability and is incapable of self-care. Prior to the updated guidance, uncertainty surrounded whether an adult child with disabilities could qualify for the E-FMLA benefit. The DOL has now made it clear, however, that adult children with disabilities can qualify for that benefit.

For purposes of the Emergency Paid Sick Leave benefit, the DOL defines "full-time employee" as an employee who is normally scheduled to work 40 or more hours per week. (Q&A Nos. 48-49).

"Stacking" Leave Under FMLA and E-FMLA

The E-FMLA benefit does not add a new entitlement to 12 weeks of leave in addition to FMLA provided and/or taken for other qualifying reasons. Thus, preventing employees from "stacking" leave. Apart from certain military servicemember leaves, an employee is only entitled to 12 weeks of FMLA leave in total during the 12-month period. Therefore, if an employee has already taken all of his or her FMLA leave during this 12-month period, he or she would not be entitled to any additional leave under E-FMLA during the same period. (Q&A Nos. 44-45).

FFCRA Benefits for Health Care Providers and Emergency Responders

Significantly, employees who serve as "health care providers" or "emergency responders" may be excluded from the Act's coverage. In the March 28 update, the DOL provided definitions for "health care provider" and "emergency responder," and it seems that the DOL is now applying a broad interpretation to these exclusions. (Q&A Nos. 56-57). For purposes of employees who may be excluded from FFCRA leave benefits, the DOL defines a "health care provider" as:

[A]nyone employed at any doctor's office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state's or territory's or the District of Columbia's response to COVID-19.

(Q&A No. 56). Contrary to previous opinions, this expansive definition appears to permit employers to exclude from FFCRA leave benefits all employees of a health care facility, rather than just those employees that provide direct health care.

Again, for purposes of employees who may be excluded from FFCRA leave benefits, the DOL defines "emergency responder" as:

[A]n employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state's or territory's or the District of Columbia's response to COVID-19.

(Q&A No. 57). Contrary to previously-held opinion, because this definition includes "individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility," it appears that employers may be allowed to exclude from FFCRA leave benefits most, if not all, employees working for an employer that provides emergency response.

Small Businesses

Lastly, because compliance with the E-FMLA and EPSLA could jeopardize the viability of some small businesses (fewer than 50 employees), the DOL provides guidance as to which small business are exempt from the Acts. (Q&A Nos. 58-59). The DOL explained that a small business may claim this exemption if an "authorized officer of the business" has determined that:

1. The provision of paid sick leave or expanded family and medical leave would result in the small business's expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  

2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  

3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

(Q&A 58). The DOL further clarified that a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements of if the:

• employer employs fewer than 50 employees;

• leave is requested because the child's school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and

• an authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.

(Q&A 59).

The DOL again encouraged employers and employees to work together to reach solutions, but also provided employees with contact information if they believe their employer is not complying with the FFCRA's requirements.

Families First Coronavirus Response Act - March 19, 2020

On March 18, 2020, Congress passed H.R. 6201: Families First Coronavirus Response Act-a relief package that, among other things, contains several provisions affecting employers. President Trump signed the bill later that same evening, which enacted it into law effective April 2, 2020. Below is a summary of the key employment-related aspects of the Act.

1. Emergency Family and Medical Leave Expansion Act

The Act provides employees of:

Private sector employers with fewer than 500 employees; or

Public agencies (regardless of the employee threshold)

with the right to take up to 12 weeks of job-protected leave under the Family and Medical Leave Act ("FMLA") for COVID-19 related matters as set forth below.

The Act provides that the first ten days of leave can be unpaid but requires that the remainder of the 12 weeks of FMLA leave be paid at a rate of no less than two-thirds of the employee's usual rate of pay. FMLA leave for all other purposes remains unpaid. The Act also provides a limit on this pay entitlement: $200 per day and $10,000 in aggregate per employee. Employees who work part-time or irregular hours are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. For employees who have worked less than six months, they are entitled to be paid based on the employee's reasonable expectation at hiring of their average number of hours.

To be eligible for paid leave, employees must have been:

On the employer's payroll for 30 days; and

Uses the emergency FMLA leave to care for an employee's child, under the age of 18, if the child's school or place of care has been closed, or the childcare provider is unavailable, due to the coronavirus.

Requests for FMLA leave for any other purpose should continue to be handled through normal FMLA procedures (i.e. up to 12 weeks of unpaid leave).

During the initial ten-day period of unpaid leave, the employee may choose to substitute accrued paid time off or other medical or sick leave during this period. After the first ten days of unpaid leave, employers must continue paid FMLA leave at a rate of no less than two-thirds of the employee's usual rate of pay.

As with traditional FMLA leave, this leave is job-protected, and an employer must return the employee to the same or equivalent position upon their return to work. While the Act outlines an exception for employers with less than 25 employees if the employee's job no longer exists due to the coronavirus pandemic, employers are still required to make reasonable efforts to restore the employee to an equivalent position over a one-year period beginning on the earlier of (a) the date on which the qualifying need related to a public health emergency concludes, or (b) the date that is 12 weeks after the date the employee's leave started.

The Act grants the Secretary of Labor the authority to issue regulations exempting: (1) certain health care providers and emergency responders from taking leave under the Act; and (2) small businesses with fewer than 50 employees from the requirements of the Act if it would jeopardize the viability of the business.

Please note that this amendment to the FMLA would expire on December 31, 2020.

2. Emergency Paid Sick Leave Act

The Act separately provides employees of:

Private entities employing fewer than 500 employees; and

Public agencies (or any other entity that is not a private entity or individual) which employ 1 or more employees

with the right of up to 80 hours of paid sick leave (or the equivalent of two weeks of hours for part-time employees) for use if an employee is unable to work (or telework) due to a need for leave 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 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.

Employers must compensate employees for any paid sick time they take at their regular rates of pay (unless the leave is taken pursuant to reasons 4, 5, and 6 above, in which case the employee is only entitled to two-thirds of his or her regular rate of pay). The sick leave is available for immediate use by employees, regardless of length of employment.

Additionally, part-time employees are entitled to the number of hours of paid sick time equal to the number of hours they work, on average, over a two-week period.

Wages pursuant to the Emergency Paid Sick Leave Act are capped at $511 per day up to $5,110 total per employee for their own use (see subparagraphs (1)-(3) above) and at $200 per day up to $2,000 total to care for others and any other substantially similar condition (see subparagraphs (4)-(6) above).

Notably, employers must provide the paid leave provided by the Act in addition to any paid leave already provided and cannot require employees to utilize other paid leave before using the paid leave provided by this bill.

Like the amendment to the FMLA, this aspect of the Act would also expire on December 31, 2020.

What happens if employees are unable to work solely due to business determinations or closures?

In other words, if it is a layoff or closure of the business, based on a literal reading of the Act, those employees would not be eligible for paid sick or FMLA leave. To qualify under the Act, employees must fall into one of the above leave situations. If an employer prohibits employees from physically reporting to work due to Coronavirus/COVID-19 concerns, and employees are unable to work remotely and do not otherwise fall within the leave reasons discussed above, it appears they would not be eligible for benefits under this Act. In such circumstances, leave will be governed by state or local statutory sources and the company's policies or collective bargaining agreements.

Who pays for the leave or sick time?

Employers must pay these benefits, however, there are provisions in the bill that provide tax credits to employers in certain circumstances and with certain caps.

Exclusions:

Under the Act employers, at their discretion, to exclude any employee "who is a health care provider or an emergency responder" from the benefits set forth in those Acts. The DOL is expected to issue regs to address the issue and (hopefully) add more clarity but each Act expressly affords employers of such employees the discretion regardless.

What's Next?

Once the bill is enacted, covered employers as described abovewill have to adhere to the above leave requirements within 15 days and they will be required to provide notice to their employees through postings and policies. In addition to this federal Act, many states are proposing similar emergency legislation to enact or expand their own paid sick leave or FMLA laws to cover COVID-19 related issues. These state laws, if enacted, would be in addition to these new federal requirements.

We will continue to monitor this situation as it continues to rapidly change and develop.

Guidance For Employers Regarding COVID-19 - March 10, 2020

Employers can expect COVID-19 to impact their workforce as it spreads throughout the United States and Florida. We recommend employers be prepared as it spreads locally and consider preventative measures to maintain the safety of their workplace and protect their employees within the law. For additional information, the Centers for Disease Control (CDC) has issued guidance for employers which we recommend checking regularly. Additionally, we recommend checking updates from federal, state, and local officials, and following directives and procedures that may be applicable to your particular organization.

What steps can employers take now?

• Take a common sense approach to preventing the spread of highly communicable flu-like diseases in the workplace by practicing good hygiene, avoiding travel to areas of concern, and staying home when sick.

• Inform employees that the company is monitoring the situation and taking appropriate precautions and provide a point person for questions regarding the company’s response to COVID-19.

• Direct employees to immediately notify the company if they have been exposed to COVID-19 so that appropriate support and accommodations can be provided, and ensure employees that the disclosure of such information will be confidential.

• Evaluate (or create) workplace emergency response protocols for infectious diseases and modify them to address a potential coronavirus outbreak. Protocols should include contact information for employer representatives, teleworking policies or plans, and leave policies in case of an outbreak at work or in the community.

• Encourage sick employees to stay home.

• Perform routine environmental cleaning.

• Encourage employees to wash their hands, maintain safe social distance, avoid large gatherings, and consider changes to business travel and alternatives such as video conferencing.

• Advise employees before traveling to take certain steps. Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which employees may travel.

• Continue following relevant news updates. Remain informed about whether any employees become symptomatic, while keeping the workplace as safe and clean as possible in order to limit any potential spread of COVID-19.

• Be deliberate in creating strategies for continuing business operations if the outbreak turns into an epidemic.

Frequently Asked Questions (FAQ)

Below are general questions and answers, but all situations should be considered on a case-by-case basis and with legal advice.

Can employers prohibit employees from traveling for business or personal reasons to areas affected or outside the U.S?

Yes. There are no laws prohibiting employers from limiting travel for employees to certain areas or countries outside the United States, although enforcement will be difficult.

Can employers require employees notify them of travel plans?

Yes. There is no law prohibiting employers from requiring employees to disclose travel plans. Again, expect enforcement problems.

What should an employer do if it suspects that one of its employees was exposed to the virus?

If an employer has a reasonable, objective belief that an employee may have been exposed to COVID-19 and is a danger to the workplace, the employer can require the employee to work from home. When determining whether you should require an employee to work from home, employers should consider the employee’s recent travel, the amount of time the employee has been back, and the employee’s symptoms, if any. If an employee’s position does not allow him or her to work from home, then the employer should consider providing the employee with paid leave for the duration of the incubation period (originally believed to be 14 days, although newer information indicates a longer period of up to 24 days).

Can employers require that employees be tested for COVID-19?

Depends on the circumstances. The Americans with Disabilities Act (ADA) prohibits mandatory medical examinations unless they are job related and consistent with business necessity. An employer must have a good faith, objective, and reasonable belief based on the evidence that the examination is necessary or that there is a direct threat to the employee’s co-workers. If so, then mandatory medical examination is permissible. Voluntary medical examinations should be encouraged, noting that employers have confidentiality requirements under the ADA if this information is disclosed by the employee. However, employers should be mindful of the CDC’s guidance that testing for COVID-19 may be delayed or limited due to increased demands on the healthcare system, and thus, employers may need to relax existing leave policies to account for this reality.

If an employee has contracted COVID-19 are they eligible for FMLA leave?

Probably. The Family Medical Leave Act (FMLA) entitles employees with a “serious health condition,” as defined by law, to unpaid leave and job restoration benefits. A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment from a healthcare provider. Symptoms of COVID-19 are described as flu-like, and generally the common flu is not considered a serious health condition unless the condition meets the FMLA definition. In other words, a serious flu involving inpatient care and/or continuing treatment may qualify.

Accordingly, an employee with COVID-19 or an employee who is taking care of a qualifying family member with COVID-19 may be permitted to take protected FMLA leave based on the same conditions as any other employee and if the condition qualifies like any condition under the FMLA. Employers should note, however, that charging an employee FMLA leave who does not have an otherwise FMLA qualifying condition is prohibited. Stated differently, an employee without the condition, cannot be charged FMLA leave if they are out of the workplace. Likewise, if a parent is caring for a child without a serious health condition (or a child is home for canceled school due to an outbreak), they cannot be charged.

Can an employer require an employee with COVID-19 that is on leave to use FMLA leave for the absence?

Yes. Consistent with an employer’s policy and the leave qualifies as FMLA leave, an employee can be charged their FMLA leave while on a leave of absence if they have contracted COVID-19.

Can an employer require an employee to take leave or telework if they are suspected of having the disease or are returning from an area infected by the disease?

Yes. There is no law prohibiting this action. Non-exempt employees are not required to be paid for time they are not working under the Fair Labor Standards Act (FLSA). However, note that non-exempt employees must be paid for time spent working from home. Exempt employees that are directed to telework for precautionary reasons must continue to be paid

Is an employer required to attempt to maintain a workplace free from COVID-19 exposure?

Yes. Private employers are covered by the Occupational Safety and Health Administration (OSHA) and common sense requires sick employees to stay home. In a potential pandemic, although not specific to COVID-19, an employer can be cited for a general duty clause violation where OSHA proves, for example, that a) the pandemic virus was present in the workplace and the employer's efforts to control exposure were insufficient, and b) employees were required to perform tasks that exposed them to the hazard of a pandemic influenza. See 29 U.S.C. § 654(a)(1).

Both the CDC and OSHA have guidelines/checklists regarding disease control practices:

OSHA - https://www.osha.gov/SLTC/covid-19/

CDC - https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html

Should employers disclose the name of an employee that contracts COVID-19?

No. The ADA requires confidentiality of medical information except for a need-to-know basis including human resources personnel, direct supervisors, and the government. In the event of an outbreak, employers must balance this restriction of disclosing the identity of an employee with their efforts to protect their workforce from additional transmission of COVID-19.

FAQ For Public Employers

What affect does the Governor’s Executive Order No. 20-51 and the Declaration of Public Health Emergency have on Florida’s local governments?

The Governor’s Executive Order directs the State Surgeon General to declare a public health emergency and directs the Florida Department of Health to coordinate emergency response activities among state agencies and local governments. See Section 381.0011(7), Florida Statutes. The public health emergency authorizes the State Surgeon General to take actions that are necessary to protect the public health. See Section 381.00315, Florida Statutes. These actions may include declaring, enforcing, modifying, or abolishing the isolation and quarantine of persons, animals, and premises.

What does this mean for local law enforcement agencies?

Any order of the Department of Health issued pursuant to Section 381.00315(4), Florida Statutes, is immediately enforceable by law enforcement. See Section 381.00315(4), Florida Statutes.

What does this mean for local officials?

Appropriate city and county officials have a duty to assist the Department of Health and any of its agents with enforcement of health laws, rules, and orders. See Section 381.0012, Florida Statutes.

How is the Sunshine Law impacted by the emergency?

At this time, all municipal body meetings are still required to be open to the public and board members are still required to be physically present to constitute a quorum. However, an exemption may be made as the COVID-19 outbreak continues.

Are members of the public still able to comment at public meetings?

Generally yes, but there is a limited exception to the right to public comment in emergency situations affecting the public health, welfare, or safety, where allowing the public to comment would cause an unreasonable delay in the board or commission’s ability to act. See Section 286.0114, Florida Statutes.