March 31, 2020
I trust all of you are well and dealing with the Coronavirus crisis as well as can be expected. New reports are suggesting it will subside sooner than later. With this novel coronavirus comes the response of Federal, State, and Local governments and the need to navigate new issues.
By this time I am sure most of you have read more than you wanted to read about the virus and how it is impacting the work place. Like you, I have been bombarded with articles literally every day from many sources. I have taken the time to compile highlights from several sources.
In this report, I have created a checklist of applicable laws, address issues that exist in the employment field, and also address briefly some workers’ compensation issues. It is my hope there will some “tidbit” of new information that may benefit you and your employer or company.
INSTRUCTIONS TO EMPLOYEES
The first resource is the Centers for Disease Control and Prevention (www.cdc.gov). On that site is the Presidents’ Coronavirus Guidelines for America, which includes the basic instructions for avoiding social gatherings over ten people, avoiding discretionary travel, and practicing good hygiene. Scroll down to “Business & Employers” which contains detailed proposals for every business to consider. The CDC is regularly updating its website.
Mississippi State Department of Health also has its own COVID-19 link on its website. MSDH is tracking current reports from each county on total positive tests and deaths. There is also a link for Prevention and Preparation which is regularly updated. See: www.msdh.ms.gov.
With regard to washing hands, I commend to you CNN’s Dr. Sanjay Gupta’s video with an example of the best way to wash hands (like they do in the hospitals) See: www.cnn.com/videos /health/2020/03/27/how-to-wash-hands-gupta-vpx.cnn.
It is recommended a notice be prepared to all employees recommending they follow the CDC guidelines. It is also important for an employer to assure employees they are monitoring relevant information and will make decisions in the best health interests of the employees. Employees should be encouraged to report immediately to HR or their supervisor any concerns about their colleagues. Employees should be reminded not to report for work if they are ill or have a fever.
THE EEOC GUIDANCE ON THE AMERICANS WITH DISABILITY ACT
On March 19, 2020, the EEOC updated its Guidance. It is entitled “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.” See: www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
The EEOC states since this is a pandemic, an ADA-covered employer may ask employees if they have the symptoms of COVID-19 such as fever, chills, cough, shortness of breath, or sore throat. The information must be kept as a confidential medical record. An employer may require an employee to have his/her temperature taken and to stay home if he/she has some of the symptoms. An employer may require a doctor’s note as a condition of the employee of returning to work. The Guidance includes similar rules for applicants and employees returning from travel abroad.
It is my opinion an employer may impose discipline for an employee’s failure to respond to reasonable questions regarding their health.
FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA)
This Act becomes effective on Tuesday, April 1, 2020 (no fooling!). There are numerous blogs addressing the details of the Act. The law is difficult to read. It can be found at https://www.congress.gov/bill/116th-congress/house-bill/6201
The Act has Divisions A-H. The best short summary is found in the poster just released by the DOL which every employer is required to place in a prominent location. See: https://www.dol.gov/general/topics/posters
Division C (Section 3101, et al) is the Emergency Family and Medical Leave Expansion Act. It is an amendment to the FMLA. It provides, among other issues, that a qualified employee caring for his/her child whose school or place of care is closed (or child care provider is unavailable), due to COVID-19 related reasons, is entitled to an additional twelve weeks of FMLA. The first two weeks are unpaid (the employee may use vacation, sick, PTO or similar leave). The employee may receive two thirds of the “regular rate” (in accordance with the Fair Labor Standards Act) subject to a cap. There is a formula for part-time workers. The Act includes an anti-retaliation provision and special rules addressing the employer’s duty to retain the employee’s job for the extended leave (there is an exception for an employer with less than 25 employees that can meet certain criteria). There is an exemption opportunity for employers with fewer than 50 employees if providing the mandated benefits “would jeopardize the viability of the business as a growing concern.”
Division E (Section 5101, et al) is the Emergency Paid Sick Leave Act. It provides 80 hours of paid sick leave (based upon the regular rate of the FLSA) for employees who meet one of the following qualifying reasons: (1) is subject to a federal, state or local quarantine; (2) has been advised by a health care provider to self-quarantine related to COVID-19; or (3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis. There is a cap of $500.00 daily and $5,110.00 total. An employee is entitled to two thirds of the regular rate for the following qualifying reasons: (4) caring for a person subject to an order described in (1) or self-quarantined described in (2); (5) caring for a son or daughter of the employee if the school or place of care of the son or daughter has been closed, or the child care provider is unavailable due to COVID-19 precautions (this overlaps with the Amended FMLA); or (6) employee is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services. This paid sick leave is limited to $200.00 daily and $2,000.00 total for reasons (4), (5), and (6). Part time employees qualify and there is a formula for calculating their paid sick leave subject to the same limitations.
Other provisions include: (1) paid sick leave does not carry over from one year to the next; (2) an employee is not required to seek other employment while receiving the paid sick leave. An employer may not require an employee to use other leave (such a vacation, sick or PTO leave) first; and (3) there is also an anti-retaliation provision. This Act also includes an exemption opportunity for employers with fewer than 50 employees if providing the mandated benefits “would jeopardize the viability of the business as a growing concern.”
All employees as of the date of their application qualify. I read this to mean the employee who has been employed for less than 30 days that must take off work to care for his/her child because school has closed is entitled to the paid sick leave but not the job guarantees and other FMLA benefits.
The DOL had issued three publications in addition to the poster: (1) Employer Fact Sheet: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave; (2) Employee Fact Sheet: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave; and (3) Questions and Answers: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
The FFCRA applies to employers with under 500 employees. An employer may qualify for 500 or more employees if the employer is a joint employer or an integrated business. (These terms are defined in the FMLA, EEOC and case law.) The Questions and Answers are especially helpful and have a question specifically addressing the joint employer/integrated business issue.
The FFCRA includes Division G (Section 7001, et al) entitled “Tax Credits For Paid Sick Leave and Paid Family And Medical Leave.” This provides eligible employers who pay qualifying sick or child care leave connected with COVID-19 will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and childcare leave they paid rather than deposit them with the IRS. The payroll taxes that are available for retention includes withheld federal income taxes, the employee share of Social Security and Medicare taxes and the employer share of Social Security and Medicare taxes with respect to all employees. See: https://www.dol.gov/newsroom/releases/osec/osec20200320
The FFCRA includes Division D (Section 4101, et al) on unemployment benefits which will be addressed below.
The Act states the Department of Labor may issue regulations. These may provide additional valuable guidance when they are released. Of special interest are the rules to qualify for the exemption for employers with less than 50 employees. Also, the Secretary of the Treasurer is required to prescribe regulations and other guidances to address the Tax Credits.
The FFCRA also has sections on Appropriations, Nutrition Waivers, Health Provisions and Budgetary Effects. These are outside the scope of this Article.
Entities who are subject to the Occupational Safety and Health Administration (you know who you are) should be aware OSHA has a special section of their web site entitled “Guidance For Preparing Workplaces for COVID-19.” The Guidance has recommendations for OSHA covered employers to (1) Develop an Infectious Disease Preparedness and Response Plan; (2) Prepare to Implement Basic Infectious-Prevention Measures; (3) Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate; (4) Develop, Implement and Communicate About Workplace Flexibilities and Protection; and (5) Implement Workplace Controls. There is also a Temporary Enforcement Guidance addressing the risks of healthcare industry workers and the short supply of N95 filtering facepiece respirators. The Guidance provides some necessary flexibility relating to the normally strict requirements associated with the filtering facepiece and respirators. Also part of the COVID-19 menu is a section on Standards where employers are reminded of their obligations for record keeping, personal protective equipment and the general duty clause (29 CFR 1910.1030). See: https://www.osha.gov/
EXECUTIVE ORDERS FROM THE GOVERNOR
The Governor of Mississippi has certain powers to control the conduct the citizens of Mississippi so long as federal laws do not preempt those powers. Governor Reeves has issued several Executive Orders regarding the closing of schools and social distancing. Counties and cities are also passing laws with additional restrictions. The Executive Orders of the Governor can be found at the Mississippi Secretary of States’s web site. See: https://www.sos.ms.gov/Education-Publications/Pages/Executive-Orders.aspx
Every State has its own unemployment law which must be approved by the United States Secretary of Labor. The FFCRA provides an emergency administrative grant to States for unemployment benefits based upon the States compliance with certain conditions, including notice regarding the availability of the compensation. Applicants will be able to apply with two of the following three options: in person, by phone, or online. If the claim is not processed, and the applicant will be provided appropriate information on what is needed to process the claim.
In addition, each State must demonstrate steps to ease eligibility requirements and access to unemployment compensation, including waiving work search requirements and the waiting week, and non-charge employers directly impacted by COVID-19 due to an illness in the workplace or direction from a public health official to isolate or quarantine workers. See: FFCRA, Division D, Section 4102(a)(2)(A)(B)(C) and (3) (A)(B). There is another section that suggests even “good cause” may be waived as well as an impact on the employer experience rating. FFCRA, Division D, Section 4102(b).
In accordance with Governor Reeve’s Executive Order No. 1462, the Mississippi Department of Employment Security (MDES) has revised its policies for initial claims filed from March 8, 2020 through June 27, 2020 as follows: (1) the one week waiting period is waived; (2) the work search requirement is suspended; and (3) all normal collection activities by MDES such as garnishments, bank levies, federal and state tax refunds (among other things) are suspended. This applies only to MDES debts and not garnishments by other agencies such as child support payments to the Mississippi Department of Human Services. Significantly, employers still need to file contributions during this time. See: www.mdes.ms.gov. MDES offers to answer questions directed to CV19@mses.ms.gov. Some of the responses are available on the website. The deadline of June 27, 2020 may be extended at a later time. These revisions are not as expansive as the recommendations made in the FFCRA.
On Friday, March 27, 2020, the President signed into law H.R.748 (The CARES Act) which included $250 billion in expanded unemployment benefits. It is reported the Act contains three elements: (1) a $600.00 supplement to State-paid unemployment compensation for those who already qualify; (2) a pandemic unemployment assistance program which matches the normal state unemployment rate plus $600.00 for unemployed workers who would not normally be eligible; and (3) an extension of normal unemployment compensation (26 weeks) by 13 weeks. I am of the opinion this law will impact the eligibility criteria being considered by the MDES.
The Society for Human Resource Management (SHRM) has really stepped up to address this crisis. I recommend all HR professionals join. The web site has articles and forms to address most of the HR issues facing employers today and more. See: http://www.srhm.org/.
In reading various articles, the following were repeated enough to be relevant:
1. If an employee appears ill, SEND HIM/HER HOME.
2. It is probably not practical to require an employee to have a doctor’s release to return to work after being ill with the virus or caring for someone with the virus. This is due to the needs of physicians for medical attention. Therefore, consider allowing the employee to return to work if they report to be well for a reasonable period of time (this is not a requirement).
3. Explore ways employees can work remotely. It may be necessary to keep the business going at some point in time in the future.
4. If employees are allowed to work remotely using their personal equipment, be sure to have appropriate security systems in place to protect the confidentiality of the information.
5. If an employee is absent due to the Coronavirus and has exhausted all available leave and received the two weeks of FFCRA wages, an employer is not obligated to pay additional wages. However, several articles suggest a temporary policy be adopted to pay additional wages for a limited time to prevent employees from attempting to return to work too soon.
6. If an employee reports symptoms of the Coronavirus or has tested positive for the Coronavirus, the following steps should be considered: (1) the employee should be sent home and if not yet tested, advised to seek medical advice immediately; (2) if the employee had contact with coworkers, they should be advised (taking care to keep their identity and medical information private to the extent possible). Those coworkers should be directed to self-quarantine if they are asymptomatic; (3) the employer should implement deep cleaning and sanitation measures recommended by the CDC or MSDH. It is important, if possible, not to disclose the name of the affected employee since the information is protected under HIPAA, FMLA and the ADA. Finally, have a news release drafted in the event your company is contacted.
7. Review your policies and consider adopting temporary policies if any decisions made by management conflict with existing written policies.
Compensability is going to be on a case by case basis. If a first responder treats someone who has tested positive and (1) testifies the patient sneezed in the first responder’s face; and (2) within a short time the first responder tests positive, it is going to be a compensable case. On the contrary, if an office worker who has been a dozen places where the virus could have infected him/her but was also at work where the virus could have infected him/her, then the claim should be denied.
The closer question will be whether an employee can prove he/she was exposed to someone at work who tested positive. That claim may or may not be compensable depending upon where else the employee had been.
According to a national authority, case law in most states holds the unexpected contraction of infectious disease to be an injury by accident and compensable if causation is proven. There are some states that rule out infectious diseases, but most of those states have statutes that have limiting clauses about disease resulting from injury. Mississippi has no similar statute.
Every claim should be investigated in your usual thorough manner before a decision is made.
These are challenging and difficult times. The key is to be proactive, prepare for the worst, and hope for the best. Knowledge is power. My apologies for the length of my summaries. These comments summarize materials that are very long and detailed. It is my hope these summaries confirm what you already know and hopefully provided that “tidbit” of new information as well. As you know, our law firm is at your service regarding these issues and any other issues.
For further information or questions, please do not hesitate to contact Karl Steinberger at firstname.lastname@example.org or Stacie Zorn at email@example.com (228-762-8021).