1. On March 11, 2020, the World Health Organization officially declared the coronavirus (COVID-19) a global pandemic. What exactly is a pandemic?
According to the Center for Disease Control (CDC) a pandemic is “an epidemic that has spread over several countries or continents, usually affecting a large number of people.” An epidemic, per the CDC, is “an increase, often sudden, in the number of cases of a disease above what is normally expected in that population in that area.”
2. What websites should an employer check to get the most up-to-date information about the COVID-19 pandemic?
- Consult the official governmental websites for the cities, counties, and states where the employer conducts business in order to monitor the latest actions and recommendations; additional sites, such as this resource from the National Association of Counties, can also help with tracking governmental policies.
- Consult the websites for applicable state and local health departments and state workforce commissions.
- Monitor the CDC’s website to find guidance for businesses and other updates as the situation progresses. For example, on April 20, 2020, the CDC added General Business Frequently Asked Questions.
- The Occupational Safety and Health Administration (OSHA) published Guidance on Preparing Workplaces for COVID-19, which outlines steps that employers should take. On May 19, 2020, OSHA updated its guidance.
- The Equal Employment Opportunity Commission (EEOC) has issued guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
- Additional EEOC guidance, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, was updated in March to specifically address the COVID-19 pandemic.
- The Department of Labor (DOL) has prepared several fact sheets, Questions and Answers, and posters relating to the Families First Coronavirus Response Act (FFCRA).
- The Wage and Hour Division of the DOL published a Question and Answer document regarding COVID-19 and the Fair Labor Standards Act (FLSA).
- The National Labor Relations Board (NLRB) has posted information on the operating status of each office as affected by the COVID-19 pandemic, as well as a number of announcements and guidance documents within its usual news feed.
3. What are the employment laws that govern how a business addresses the COVID-19 pandemic?
Federal, state, and local laws govern many of the actions an employer may take in response to the COVID-19 pandemic. Some of the considerations include:
- Federal and state health and safety laws, such as standards set by OSHA and similar state-specific plans.
- Discrimination and leave laws, including the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Rehabilitation Act, the FFCRA, and specific state and local anti-discrimination and leave statutes. Some jurisdictions are implementing COVID-19-specific laws regarding paid time off.
- Federal and state worker notification laws related to layoffs and plant closures, such as the Worker Adjustment and Retraining Notification (WARN) Act and similar state statutes.
- Federal and state privacy laws.
- Federal immigration laws.
- Federal and state wage-and-hour laws, such as the Fair Labor Standards Act (FLSA) and similar state statutes.
4. If an employer follows guidance from the CDC relating to COVID-19 in the workplace, will the employer violate any employment laws?
On March 27, 2020, the EEOC held a webinar addressing its enforcement of various laws. In the webinar, the EEOC made clear that the laws it enforces do not hinder employers from following the COVID-19 guidance from the CDC and state or local public health authorities. However, employers should carefully review state and local laws for any differences and consult with counsel if there is any uncertainty about what rules to follow.
5. May employers institute a temporary remote work policy due to COVID-19?
Yes; however, whether employers implement a remote work policy likely depends on many factors, including the nature of the employer’s business and what makes sense for the employees. In creating a remote work policy, employers should not single out employees—whether to telework or to continue reporting to the workplace—based on characteristics protected under federal, state, and local anti-discrimination laws.
6. If an employee says that he/she has a disability that puts him/her at greater risk of severe illness if the employee contracts COVID-19, is a remote work arrangement a reasonable accommodation?
A remote work arrangement may be a reasonable accommodation, depending on various factors, including, but not limited to, whether the employee has a disability, the nature of the work that the employee performs, and any undue hardship to the employer. See Qs. 93 through 96 for additional information on reasonable accommodations.
7. If an employee was receiving a reasonable accommodation prior to the COVID-19 pandemic, what, if anything, does the employer need to do if the employee requests an additional or altered accommodation now that the employee is working remotely?
According to the EEOC, if an employee was already receiving a reasonable accommodation before the COVID-19 pandemic, absent undue hardship to the employer, the employee may be entitled to an altered or additional accommodation. An employer may talk with the employee to determine whether the same disability or a different disability is the reason for the employee’s additional or altered accommodation request, and to discuss the reason the accommodation is necessary. See Qs. 93 through 96 for additional information on reasonable accommodations.
8. Do employers have to reimburse employees’ expenses related to their remote work?
The DOL advises that employers cannot require employees who are covered by the Fair Labor Standards Act (FLSA) to pay or reimburse an employer for items that constitute business expenses of the employer if this would reduce an employee’s earnings below the requisite minimum wage or overtime. Moreover, employers cannot require employees to pay or reimburse for items if a remote work arrangement is provided as a reasonable accommodation to a qualified individual with a disability. Employers should review state and local laws, as some may require the reimbursement of employment-related expenses.
9. If employees are working remotely, does this change how an employer should pay them under the FLSA?
No; a remote work arrangement does not in and of itself change how an employee should be compensated. Hourly, non-exempt employees should track their time working at home as if they reported to work, and the employer should pay the employees accordingly. If an employee works overtime, the employee should be compensated for the overtime hours performed. Exempt employees should be paid if they perform any work during a workweek regardless of whether the work is performed at an office or remotely.
10. Do employers have to comply with workplace health and safety laws for employees who work remotely?
OSHA has stated that it will not inspect—and does not expect employers to inspect—the home offices of employees. The agency also will not hold employers liable for employees’ home offices. Employers, however, have a general obligation to ensure that employees are not exposed to reasonably foreseeable hazards created by their at-home employment, for example, hazards caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee’s home. Employers should exercise reasonable diligence to identify in advance the possible hazards associated with particular at-home work assignments and should provide the necessary protection through training, personal protective equipment, or other controls appropriate to reduce or eliminate the hazard. In some circumstances the exercise of reasonable diligence may necessitate an on-site examination of the working environment by the employer. Employers must take steps to reduce or eliminate any work-related safety or health problems they become aware of through on-site visits or other means.
Employers are also required to record work-related injuries and illnesses and continue to be responsible for keeping such records, regardless of whether such injuries or illnesses occur while an employee is working from home or at a company facility. Any confirmed cases of COVID-19 that occur at an employee’s home, are work-related, and involve one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first aid, or days away from work) should be recorded on the OSHA 300 log of the establishment with which the employee is associated.
11. Are there immigration concerns with moving an employer’s workforce to a remote working arrangement?
12. An employee who is not at work has told his/her employer that the employee has tested positive for COVID-19. What steps should the employer take now?
Discuss with the employee, if possible, when the affected employee was at the employer’s site prior to diagnosis to find out with whom the affected employee had contact at the employer’s site. Use this information to provide notice to the appropriate individuals. (See Qs. 15 and 16.)
The CDC states that employers should take action if an employee is suspected or confirmed to have COVID-19 infection, including determining which employees may have been exposed to the virus. Based on those determinations, employers may need to take additional precautions:
- Inform employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act.
- Most workplaces should follow the Public Health Recommendations for Community-Related Exposure and instruct potentially exposed employees to stay home for 14 days, telework if possible, and self-monitor for symptoms.
- Critical infrastructure workplaces should follow the guidance on Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19. Employers in critical infrastructure also have an obligation to manage potentially exposed workers’ return to work in ways that best protect the health of those workers, their co-workers, and the general public.
Follow all directions from the state and local health department, including whether any site closures are needed.
Educate employees about how they can reduce the spread of COVID-19 following CDC and state and local health department guidance.
Evaluate whether the employer needs to report the positive diagnosis to OSHA. (See Q. 14.)
Follow CDC guidance on environmental cleaning and disinfection as well as any directions or guidance from state or local health authorities. This may include closure of the affected work area and the relocation or temporary furlough of employees, if possible, while the employer engages in the cleaning and disinfecting of surfaces, equipment, and other elements of the work environment where exposure occurred.
On May 3, 2020, the CDC’s Frequently Asked Questions stated that in most cases if an employee is suspected or confirmed to have COVID-19, the business does not need to shut down the facility. However, the CDC recommends closing any areas used for prolonged periods of time by the sick person, with the following guidelines:
- Wait 24 hours before cleaning and disinfecting to minimize the potential of other employees being exposed to respiratory droplets. If waiting 24 hours is not feasible, wait as long as possible.
- During this waiting period, open outside doors and windows to increase air circulation in these areas.
For information on when the employee can return to work, see Q. 49.
13. An employer learns that an employee who is still at work has tested positive for COVID-19. What steps should the employer take now?
The CDC provides that employees who have symptoms of COVID-19 when they arrive at work or become sick during the day should immediately be separated from other employees, customers, and visitors and sent home. If the employee is still at work, remove and isolate the affected employee, consider providing the employee with a face mask, and arrange for the employee to leave the workplace confidentially. Follow OSHA’s Guidance on Preparing Workplaces for COVID-19 (pages 9-10) regarding appropriate methods for isolating the affected employee and protecting non-infected workers before the employee departs the workplace. Then, refer to Q. 49 for when the employee may return to work.
14. When does an employer need to report an employee’s COVID-19 diagnosis to OSHA?
OSHA’s general recordkeeping requirements provide that covered employers must record certain work-related injuries and illnesses on their OSHA 300 log. COVID-19 may be a recordable illness if a worker is infected as a result of performing the worker’s work-related duties.
On April 10, 2020, OSHA issued guidance exempting most employers from making work-related determinations unless there was reasonably objective evidence reasonably available to the employer of a “work-related” case. OSHA did not, however, exempt employers in healthcare industries, emergency response organizations, and correctional institutions from making this determination.
On May 19, 2020, OSHA revised its guidance, rescinding the loosened restrictions issued on April 10, effective May 26, 2020. According to OSHA, this guidance is intended to be time-limited to the current COVID-19 public health crisis.
Under the revised guidance, OSHA is requiring all employers to record COVID-19 cases beginning on May 26, 2020, if:
- The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (i.e., an individual has at least one respiratory specimen that tested positive for SARS-CoV-2);
- The case is “work-related” as defined by Title 29, Section 1904.5 of the Code of Federal Regulations; and
- The case involves one or more of the general recording criteria set forth in Title 29, Section 1904.7 of the Code of Federal Regulations, which include restricted work, days away from work, and/or medical treatment beyond first aid.
The OSHA guidance nevertheless notes that “in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” Further, recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard. In addition, existing regulations provide that employers with 10 or fewer employees and certain employers in low-hazard industries have no recording obligations; they need only report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.
In its revised guidance, OSHA instructs compliance officers enforcing the new rule to apply a variety of factors in determining compliance, such as:
- The reasonableness of the employer’s investigation into work-relatedness.
Employers, especially small employers, are not expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’' lack of expertise in this area. Thus, OSHA indicates that a sufficient investigation would include the following:
- Asking the employee how he/she believes COVID-19 was contracted;
- While respecting employee privacy, discussing the employee’s out-of-work activities that led to the illness; and
- Reviewing the employee’s work environment for potential COVID-19 exposure.
- The evidence available to the employer.
Employers should decide whether a case is work-related based on evidence reasonably available to them at the time the determination is made, but can change the determination later when the employer later learns more information that might impact the work-relatedness determination.
- The evidence that a COVID-19 illness was contracted at work.
OSHA’s guidance identifies the following circumstances as evidence that may weigh in favor of or against work-relatedness:
- Likely work-related if several cases develop among workers who work closely together and there is no alternative explanation;
- Likely work-related if an employee contracted COVID-19 shortly after lengthy close exposure to a customer or coworker who is confirmed positive and there is no alternative explanation;
- Likely work-related if the employee’s job duties involve frequent, close exposure to the general public in an area with ongoing community transmission and there is no alternative explanation;
- Likely not work-related if the employee is the only worker to contract COVID-19 and the employee’s job duties do not include frequent contact with the public, regardless of community transmission; and
- Likely not work-related if the employee, outside of work, has close and frequent contact with someone such as a family member, significant other, or friend (who is not a coworker) who has COVID-19.
OSHA considers COVID-19 a respiratory illness, so it should be coded as such on the 300 log. If an employee voluntarily requests that his or her name not be entered into the OSHA 300 log, the employer must not publish the employee’s name.
In light of these changes, OSHA recommends frequently checking its webpage at https://www.osha.gov/SLTC/covid-19/ for updates..
15. Should an employer notify other employees of an employee’s COVID-19 diagnosis?
Yes, based on the current guidance from the CDC and assuming the employee who has been diagnosed with COVID-19 may have had contact with any employees within a timeframe suggesting potential exposure per CDC guidelines. In this situation, using predetermined methods for emergency communications with the workforce, inform impacted employees that they may have been exposed to or been in contact with an individual in the workplace who has tested positive for COVID-19 within a timeframe suggesting potential exposure per CDC guidelines. Importantly, do not share the name of the employee with COVID-19; however, do specify the relevant work area, the employee’s recent dates in the workplace, and the individual’s last day in the workplace. If any records reflecting an employee’s positive COVID-19 diagnosis or potential exposure are created, ensure that the records are segregated from personnel files and kept in separate confidential medical records files.
16. Should an employer notify independent contractors/vendors or others visiting the employer’s facilities of an employee’s COVID-19 diagnosis?
Generally, yes, if those visiting the employer’s facilities would have come into contact with the employee or the location where the employee was working in the employer’s facility within a timeframe suggesting potential exposure per CDC guidelines.
Evaluate how best to notify vendors and facility visitors. Importantly, do not share the name of the employee with COVID-19; however, do specify the relevant work area, the employee’s recent dates in the workplace, and the individual’s last day in the workplace. If any records reflecting an employee’s positive COVID-19 diagnosis or potential exposure are created, ensure that the records are not shared with the vendors/contractors, are segregated from personnel files, and are kept in separate confidential medical records files.
17. Can an employer disclose the employee’s name when notifying individuals that an employee has been diagnosed with COVID-19?
In the EEOC webinar held on March 27, 2020, the EEOC made clear that the ADA does not permit a broad disclosure of medical information of a specific employee. Likewise, broad disclosure of medical information is not recommended by the CDC. The CDC advises employers to maintain confidentiality of people with confirmed COVID-19.
However, the EEOC has made clear that employers may disclose the name of an employee to a public health agency when the employer learns that the employee has COVID-19. The EEOC has also said that a temporary staffing agency or contractor that places an employee in a business’s workplace and then learns the employee has COVID-19 may disclose the employee’s name to the business.
18. An employer has a small office staff and if the employer gives notice of an employee’s COVID-19 diagnosis, others in the office will be able to determine who it is. Is the employer still required to give notice to other workers about the employee’s COVID-19 diagnosis?
On March 27, 2020, the EEOC held a webinar and addressed a similar issue. Based on the current situation with the COVID-19 pandemic, no laws enforced by the EEOC prevent an employer from following CDC guidelines and other public health department recommendations that mandate employers give notice of an employee’s COVID-19 diagnosis, as discussed in Q. 15. However, the EEOC noted that, even if employees might be able to figure out who had the COVID-19 diagnosis, employers are still prohibited from confirming or revealing the employee’s identity in the notice or when asked by other employees.
19. What should a company do to be prepared for “shelter-in-place,” “safer-in-place,” and other similar orders or orders addressing the reopening of businesses?
Companies should monitor and be alert for orders in all locations where the business operates, including orders at the state, county, and city level.
If an order is not currently in place that impacts the company, consider what steps the company can take to prepare for such an event. This includes, but is not limited to, considering options for remote work (see Qs. 5 - 11), evaluating the potential need for furloughs/layoffs (see Qs. 50 - 67), training employees on best practices to prevent the spread of COVID-19, and identifying how the company will notify workers if the employer’s site will be closing or remaining open. Companies also should consider developing a plan, by evaluating all applicable federal, state, and local laws, for addressing employment-related benefits with employees, such as if and when the employer will offer paid sick leave, vacation time, or other time off. As jurisdictions begin to issue orders related to reopening of businesses, companies will need to be prepared with plans to return to work safely (see Qs. 79 - 96). Follow all CDC guidance and OSHA guidance regarding how businesses should plan and respond to COVID-19, including the CDC guidance on Reducing the Spread of COVID-19 in Workplaces. In addition, employers should stay up to date on applicable orders in their jurisdictions. This compilation may assist in reviewing reopening orders and guidance, but, due to the changing nature of the situation, employers should also monitor federal, state, and local websites for the most current information.
The CDC provides guidance for reopening for reopening (found in Appendix F of the overall plan) to assist establishments as they begin to resume business operations. Additional CDC resources for businesses and workplaces are available here. State and local governments may have guidance for reopening as well.
20. What should an employer do if there is a “shelter-in-place,” “safer-in-place,” or similar order?
The employer should determine whether to remain open by reviewing all applicable orders and all available guidance. If an order is issued that affects the employer’s location, review any guidance issued by the applicable state or locality for particular categories of “essential” businesses. If the state or local order references the Department of Homeland Security’s 16 Critical Infrastructures, review the May 19, 2020, Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response.
Evaluate whether the order allows the employer (even one that may not qualify as an “essential business”) to maintain minimum basic operations, and review specific verbiage as to “essential functions” permitted under the order (e.g., payroll, security). If an employer may remain open, consider what steps the company should implement to avoid the spread of COVID-19. Follow all guidance from the CDC and OSHA regarding how businesses should plan for and respond to COVID-19. Review the applicable “shelter-in-place” orders and other relevant orders and determine whether they include any requirements for the business while it remains open. For example, some orders require certain postings at the company’s premises. Other jurisdictions are implementing requirements/guidance about face coverings and employee health checks. If the employer must close operations, notify all affected employees using a predetermined method for emergency communication with the workforce. If the employer remains open at its typical workplace, consider providing employees with a letter from the company on company letterhead stating the reason for the business staying open; reference the applicable order(s) and, where appropriate, attest to compliance with CDC guidelines regarding workplace safety related to the virus. Remind employees to stay home if they have COVID-19 or have symptoms associated with COVID-19, and encourage employees to follow CDC guidance.
21. Is there a formal process for requesting an “exemption” from a “shelter-in-place,” “safer-in-place,” or other type of order relating to the reopening of businesses?
Currently, it does not appear that all government agencies will provide specific guidance as to which businesses are to close and which ones can stay open. Each state or location may be different depending on the order in question, which must be reviewed. Check with the government agency that issued the order to determine whether there is such a process. Further, many states are issuing specific guidance as businesses reopen, which should be reviewed during the reopening process.
22. If an employer experiences a temporary shutdown of all business functions due to a “shelter-in-place,” “safer-in-place,” or other type of order, do hourly nonexempt employees need to be paid during the shutdown?
It depends. If the employees are subject to a contract, policy, or collective bargaining agreement that requires the employer to pay the employees, payment may be required. If there is no contract, agreement, or policy governing the employment relationship that requires payment, under the FLSA, hourly nonexempt employees who neither report to work nor perform any work at home during the temporary shutdown do not need to be paid.
State laws may impose different or additional requirements. For example, some states require reporting time pay or show-up pay if a nonexempt employee reports to work and is sent home. State laws should be consulted to confirm compliance.
23. If an employer experiences a temporary shutdown of all business functions due to a “shelter-in-place,” “safer-in-place,” or other type of order, do salaried exempt employees need to be paid during the shutdown?
Assuming the business is shut down and salaried exempt employees are not working remotely, then, generally, under the Fair Labor Standards Act (FLSA), exempt employees do not need to be paid for workweeks in which they do not perform any work. However, if the salaried exempt employee performs any work in the workweek when the temporary shutdown begins, then the employee must be paid his/her full salary for that week. For example, if an employee works on Monday and Tuesday, and the temporary shutdown begins on Wednesday, the employee must be paid his/her full salary for that week, under the FLSA, despite not working Wednesday through Friday.
Employers should check their state and local wage and hour laws, which may set forth standards that differ from the FLSA.
24. What types of paid leave does the Families First Coronavirus Response Act require?
The Families First Coronavirus Response Act (FFCRA) provides for two types of paid leave:
- Emergency Family and Medical Leave Expansion Act: Under this Act, covered employers must provide partially paid leave under the Family and Medical Leave Act (FMLA) when an employee cannot work or telework due to the need to care for a “son or daughter” whose school or place of care has closed, or because their care provider is unavailable. See Q. 28 for more details.
- Emergency Paid Sick Leave Act: Under this Act, covered employers must provide up to 80 hours of paid leave for reasons related to COVID-19. See Q. 30 for more details.
25. How does an employer decide if it needs to provide paid leave under the Families First Coronavirus Response Act?
Private employers with fewer than 500 full-time and part-time employees, as well as most public employers, must provide paid leave under the Families First Coronavirus Response Act (FFCRA).
Employers with fewer than 50 employees may be exempted from providing paid leave relating to childcare if providing this paid leave “would jeopardize the viability of the business as a going concern.” The Department of Labor provides additional information regarding the small business exemption in Questions #4, #58, and #59 of its Questions and Answers.
26. When does a covered employer need to begin providing paid leave under the Families First Coronavirus Response Act?
Employers needed to begin providing paid leave on April 1, 2020.
27. Is there an end date for when a covered employer must provide paid leave under the Families First Coronavirus Response Act?
Yes. Covered employers need to provide the paid leave only until December 31, 2020.
28. What are the paid leave benefits provided under the Emergency Family and Medical Leave Expansion Act?
Covered employers must provide unpaid and paid job-protected leave under the Family and Medical Leave Act (FMLA) for eligible employees who cannot work or telework due to the need to care for a “son or daughter” whose school or place of care has closed, or because their care provider is unavailable, for reasons related to COVID-19.
Eligible employees are entitled to take up to 12 workweeks of expanded FMLA leave from April 1, 2020, through December 31, 2020. The first 10 days of leave may be unpaid or an employee may elect to substitute other employer-provided leave, such as vacation leave, sick leave, or personal leave. If needed for a coronavirus-related child care purpose, the remaining 10 weeks of leave must be paid at 2/3 of the eligible employee’s average regular rate of pay, but not to exceed $200 per day and $10,000 in the aggregate. This maximum does not apply if an employee concurrently takes leave pursuant to an employer’s policy, such as vacation or paid time off.
Employees are eligible for these benefits if they have been employed for at least 30 days when the need for leave arises.
29. Does an employee have the right to be restored to the same position upon his or her return from leave under the Emergency Family and Medical Leave Expansion Act?
Generally, an employee is entitled to restoration to the same or an equivalent position after returning from leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA); however, employees are not protected from employment actions, such as layoffs, that would have affected the employee regardless of whether the employee took leave. To deny restoration, an employer must demonstrate that an employee would not otherwise have been employed when the reinstatement was requested.
For employees on leave pursuant to EFMLEA, an employer may also deny job restoration to “key” eligible employees as defined by the Family and Medical Leave Act, if the denial is “necessary to prevent substantial and grievous economic injury to the operations of the Employer.”
Finally, an employer with fewer than 25 eligible employees may deny job restoration to an eligible employee who took leave under EFMLEA if: (1) the eligible employee took leave to care for the employee’s “son or daughter” whose school or place of care was closed, or whose child care provider was unavailable due to COVID-19 related reasons; (2) the position the eligible employee held when leave began does not exist because of economic conditions or other changes in the employer’s operating conditions that affect employment and are caused by a public health emergency during the leave; (3) the employer makes reasonable efforts to restore the eligible employee to a position equivalent to the position the employee held when leave began (this includes equivalent benefits, pay, and other terms and conditions of employment); and (4) where an employer’s reasonable efforts to restore an eligible employee to an equivalent position fail, the employer makes reasonable efforts to contact the employee during a one-year period if an equivalent position becomes available.
30. What are the paid leave benefits provided under the Emergency Paid Sick Leave Act?
Covered employers must provide paid sick leave to employees who are unable to work or telework for reasons noted below. Full-time employees are entitled to 80 hours of paid sick leave, and part-time employees are entitled to the number of hours that the employee works, on average, over a two-week period.
An employee’s sick time rate of pay is based on the employee’s normal earnings capped at the following amounts:
- The employee is subject to a federal, state, or local quarantine or isolation order ($511/day)
- The employee has been advised by a health provider to self-quarantine ($511/day)
- The employee is experiencing symptoms and seeking a diagnosis ($511/day)
- The employee is caring for a person who is subject to an order to quarantine or who was advised to quarantine ($200/day)
- The employee is caring for a "son or daughter" due to a school or care provider closure or unavailability ($200/day)
- The employee is experiencing any other substantially similar condition ($200/day)
An employer of an employee who is a healthcare provider or emergency responder may elect to exclude an employee from application of paid sick leave.
The newly mandated paid sick time is in addition to any paid leave previously offered by employers or sick leave required by state or local law. An employee may use the leave immediately and an employer may not require an employee to use other paid leave before the emergency paid sick time.
31. Does the Emergency Paid Sick Leave Act provide any other employee protections?
Yes. The Act also prohibits employers from discharging, disciplining, or otherwise discriminating against employees who 1) take paid sick leave under the Act; or 2) file a complaint or institute or cause to be instituted any proceeding under or related to the Act, or testify or are about to testify in any such proceeding.
32. Do employers need to give notice to employees about the paid leave provided by the Families First Coronavirus Response Act?
Yes. The Families First Coronavirus Response Act (FFCRA) requires an employer covered by the new paid leave provisions to post and keep posted on its premises a notice “in conspicuous places.”
The Department of Labor (DOL) has taken the position that employers can satisfy the FFCRA’s notice requirement by “emailing or direct mailing this notice to Employees or posting this notice on an Employee information internal or external website.”
The DOL has published the model poster on employee rights regarding paid sick leave and expanded family and medical leave under the FFCRA.
The DOL has also provided FAQs regarding the posting requirement.
33. If an employer closes its worksite on or after April 1, 2020, but before an employee goes out on leave, can the employee take emergency paid sick leave or expanded family and medical leave under the Families First Coronavirus Response Act?
According to frequently asked questions published by the Department of Labor (DOL), no. If an employer closes the worksite or furloughs employees on or after the effective date of the Families First Coronavirus Response Act (FFCRA), the employee will not get paid sick leave or expanded family and medical leave. This is the case whether the employer closes the worksite for lack of business or because of a federal, state, or local directive. However, the employee may be eligible for unemployment insurance benefits.
34. If an employee already used some or all of the employee’s leave under the Family and Medical Leave Act (FMLA), does the employee qualify for the full amount of leave for a reason related to COVID-19 pursuant to the Families First Coronavirus Response Act?
According to the Department of Labor, an eligible employee is entitled to take emergency paid sick leave under the Families First Coronavirus Response Act (FFCRA) regardless of the amount of leave the employee took under FMLA.
If an employer was covered by FMLA before April 1, 2020, the employee’s eligibility for expanded FMLA under the FFCRA is dependent on the amount of leave an employee already took during the 12-month period the employer uses to calculate FMLA leave. Employees are entitled to a total of 12 workweeks for FMLA or expanded FMLA in a 12-month period.
35. What are the tax credits an employer is eligible to take for providing paid leave under the Families First Coronavirus Response Act?
The Families First Coronavirus Response Act (FFCRA) provides employers with a tax credit against the employer’s portion of Social Security taxes (which consists of a 6.2% tax on wages by the employer). The tax credit is equal to 100% of the paid leave wages required to be paid under the FFCRA. If the tax credit (wages paid out under the new benefit) exceeds the amount of the employer’s portion of Social Security tax due for the applicable quarter, the employer may treat the excess as a refundable overpayment. The amount of any tax credit claimed by an employer is subject to certain limitations, including a cap tied to the type of leave taken by an employee ($511 per day in cases of leave taken to care for oneself and $200 per day where leave is taken to care for another individual). The amount of the tax credit that may be claimed by an employer is increased by an amount equal to the employer’s portion of any Medicare taxes (imposed at a 1.45% rate) incident to the payment of paid leave wages under the FFCRA (however, this additional tax credit amount continues to operate as an offset to the Social Security tax, as described above).
Shortly after enactment of the FFCRA, the Internal Revenue Service issued guidance allowing eligible employers who pay qualified leave wages, such that the employer anticipates receiving the above-described tax credit, to fund the qualified leave wages by (1) retaining federal employment taxes that the employer would otherwise be required to deposit with the IRS, or (2) requesting an advance from the IRS. Federal employment taxes that may be retained by an eligible employer in lieu of depositing such taxes with the IRS include federal income taxes ordinarily withheld from employees and FICA taxes (both the employees’ and employer’s shares of Social Security and Medicare taxes). If a qualified employer’s qualified leave wages exceed such employer’s federal employment tax deposits, the employer can file a Form 7200, Advance Payment of Employer Credits Due to COVID-19, to claim an advance credit for the remaining qualified leave wages it has paid for the quarter for which it did not have sufficient federal employment tax deposits. An eligible employer should not claim an advance for the same portion of the anticipated tax credits it relied upon to reduce its federal employment tax deposits. See also Summary of Tax Provision of the Families First Coronavirus Response Act and Certain Tax Filing Changes.
36. Can employers require employees to provide notice of the need for leave under the Families First Coronavirus Response Act?
Yes. The Department of Labor’s regulations indicate that an employer may require an employee to follow reasonable notice procedures after the first workday (or portion thereof) for which an employee takes emergency paid sick leave for any reason other than when an employee is caring for his or her “son or daughter” whose school or place of care has been closed, or the child care provider is unavailable, for reasons related to COVID-19.
Where an employee requests leave to care for the employee’s “son or daughter” whose school or place of care is closed or child care provider is unavailable, due to COVID-19 related reasons, if the leave was foreseeable, the employee shall provide the employer notice of emergency paid sick leave or expanded family and medical leave as soon as practicable.
If an employee does not provide proper notice, the employer should give the employee notice of the failure and an opportunity to submit the required documentation before denying a leave request.
An employer cannot require advance notice and an employer may only require notice after the first workday (or portion of a workday) for which an employee takes the emergency paid sick leave or expanded family and medical leave. After the first workday, it is reasonable for an employer to require notice as soon as practicable based on the circumstances and facts of a situation.
37. What, if any, documentation are employees required to provide in connection with taking emergency paid sick leave or leave under the Emergency Family and Medical Leave Expansion Act under the Families First Coronavirus Response Act?
The Department of Labor has issued regulations addressing the documentation an employee is required to provide. Employers cannot require documentation beyond what is specified by the regulations.
Prior to taking emergency paid sick leave or leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA), an employee is required to provide the employer:
- the employee’s name;
- the date(s) for which leave is requested;
- the qualifying reason for the leave; and
- an oral or written statement that the employee is unable to work because of the qualified reason for the leave.
In addition to the above information, the regulations provide that further information may be required under the following circumstances:
- If an employee is taking paid sick leave for a qualifying COVID-19 reason in connection with a federal, state, or local quarantine or isolation order related to COVID-19, the employee must also provide the employer with the name of the government entity that issued the order.
- If an employee is taking paid sick leave for a qualifying COVID-19 reason because the employee has been advised by a healthcare provider to self-quarantine due to COVID-19-related concerns, an employee must also provide the employer with the name of the healthcare provider who advised the employee to self-quarantine.
- If an employee is taking paid sick leave for a qualifying COVID-19 reason because the employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or is directed by a healthcare provider to self-quarantine due to concerns regarding COVID-19, the employee must provide to the employer either: (1) the name of the government entity that issued the order; or (2) the name of the healthcare provider who advised the individual to self-quarantine.
- To take leave under EFMLEA or paid sick leave for a qualifying COVID-19 related reason when the employee is caring for a “son or daughter” whose school or place of care has been closed, or the child care provider is unavailable, an employee must also provide: (1) the name of the “son or daughter” being cared for; (2) the name of the school, place of care, or child care provider that closed or became unavailable; and (3) a representation that no other suitable person will be caring for the “son or daughter” during the period the employee takes leave under EFMLEA or paid sick leave.
38. Can an employer request information from an employee to substantiate eligibility for tax credits pursuant to the Families First Coronavirus Response Act?
Yes. According to Department of Labor regulations, in addition to the documentation described in Q. 37, an employer may request an employee to provide additional material as necessary for the employer to support a request for tax credits under the Families First Coronavirus Response Act. An employer is not required to provide leave if materials sufficient to support the applicable tax credit are not provided.
The Internal Revenue Service has issued a compilation of frequently asked questions, which explain that an eligible employer will substantiate eligibility for the leave credits if the employer receives a written request for leave from the employee which provides the following:
- The employee’s name;
- The date(s) for which leave is requested;
- A statement of the COVID-19-related reason the employee is requesting leave and written support for such reason; and
- A statement that the employee is unable to work, including by means of telework, for such reason.
According to the IRS guidance, if an employee is making a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the healthcare professional advising self-quarantine. If the person subject to quarantine or advised to self-quarantine is not the employee, the statement should include the person’s name and relationship to the employee.
The IRS guidance also indicates that if an employee requests leave based on a school closing or the unavailability of a child care provider, the employee’s statement should provide the name and age of the child (or children) who needs to be cared for, the name of the school that closed, or the place of care that is unavailable, and a representation that no one else will be providing care for the child during the period of leave. If the employee cannot work or telework because the employee needs to care for a child who is older than 14 years of age during daylight hours, the employee should provide a statement that special circumstances exist requiring the employee to provide care.
39. Does an employer need to maintain additional records to substantiate eligibility for tax credits under the Families First Coronavirus Response Act?
Yes. In addition to the information described in Q. 38, IRS guidance indicates that an eligible employer will substantiate eligibility for leave credits if, in addition to the information described in Q. 38, the employer creates and maintains records that include the following information:
- Documentation showing how the employer determined the amount of qualified sick and family leave wages paid to employees that are eligible for the credit, including records of work, telework, and qualified sick leave and qualified family leave;
- Documentation showing how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
- Copies of any completed Forms 7200, Advance Payment of Employer Credits Due to COVID-19, that the employer submitted to the IRS; and
- Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS. If an employer uses a third-party payer to satisfy its employment tax obligations, records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on Form 941.
Such records should be maintained for at least four years after the later of (1) when the tax becomes due, or (2) when the tax is paid.
40. What happens if an employer does not comply with the paid leave requirements under the Families First Coronavirus Response Act?
Employers may be subject to penalties. The DOL has stated that it will not bring enforcement actions against employers for violations of the FFCRA through April 17, 2020, as long as the employer has made reasonable, good faith efforts to comply with the FFCRA.
Employers who fail to comply with the Emergency Paid Sick Leave Act by failing to provide paid sick time or discriminating against employees for the reasons listed in Q. 30 could be subject to:
- Upon conviction for a willful violation, a fine of not more than $10,000, imprisonment for not more than six months, or both.
- Providing the amount of paid leave that should have been paid and an additional equal amount as liquidated damages.
- Reinstatement of terminated employees, as well as any lost wages, and an additional equal amount as liquidated damages.
- Attorneys’ fees and costs.
- Injunctive relief.
Employers who fail to comply with the Emergency Family and Medical Leave Expansion Act are subject to the enforcement provisions of the Family and Medical Leave Act, and an employer could be subject to:
- Damages equal to either 1) wages, salary, employment benefits, or 2) other compensation denied or lost because of the violation or any actual monetary losses sustained by the employee as a direct result of the violation.
- An additional equal amount as liquidated damages.
- Prejudgment interest.
- Reinstatement of terminated employees.
- Attorneys’ fees and costs.
- Injunctive relief.
41. What obligations does an employer have to keep its employees safe during the COVID-19 pandemic?
While there is no OSHA standard specific to COVID-19, OSHA places a general duty on employers to provide their workers with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This duty includes taking proactive steps to limit employees’ risk of exposure to unsafe conditions and recognized hazards. OSHA covers all private-sector employers, irrespective of size, except for employers already subject to the workplace-safety rules of another federal agency, such as the Federal Aviation Administration. There are also 28 OSHA-approved State Plans operating statewide occupational safety and health programs. State Plans are required to have standards and enforcement programs that are at least as effective as OSHA’s, and they may have different or even more stringent requirements. Further, Section 11(c) prohibits employers from retaliating against workers for raising concerns about safety and health conditions.
The CDC has also published FAQs addressing steps that employers can take to maintain a safe and healthy workplace, and the agency recently issued guidance to assist “non-essential” employers in safely reopening their businesses.
42. Can employers encourage or even require employees who are sick to stay at home?
Yes. The CDC advises employers to encourage employees who have symptoms of coronavirus to stay home and not come to work. Additionally, in the EEOC’s March 27, 2020, webinar, the EEOC explained that an employer may exclude those with COVID-19 or symptoms associated with COVID-19 from the workplace because their presence would pose a direct threat to health or safety.
43. Can employers ask employees to leave work if they exhibit symptoms of coronavirus or the flu?
Yes. The CDC recommends that employees who appear to have symptoms of coronavirus (such as fever, cough, or shortness of breath), upon arriving to work or who become sick during the day should be immediately separated from other employees, customers, and visitors and sent home. Additionally, in the EEOC’s March 27, 2020, webinar, the EEOC explained that an employer may exclude those with COVID-19 or symptoms associated with COVID-19 from the workplace because their presence would pose a direct threat to health or safety.
44. If an employee calls in sick, what can the employer ask the employee?
According to EEOC guidance, based on CDC recommendations pertaining to COVID-19, “employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.”
Employers may want to consult state or local law to confirm that there are no prohibitions on such inquiries.
The CDC cautions, however, that employers should not require sick employees to provide a COVID-19 test result or healthcare provider’s note to validate their illness, qualify for sick leave, or return to work, because healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner.
45. Can an employer ask an employee why the employee has been absent if the employer thinks it may be due to medical reasons?
46. Can an employer ask an employee if the employee has been diagnosed with COVID-19?
In a webinar held by the EEOC on March 27, 2020, the EEOC explained that based on the current situation with COVID-19, employers may ask all employees who will be physically entering the workplace if they have symptoms associated with COVID-19 or whether they have been tested for COVID-19. However, for employees who are teleworking and not physically interacting with coworkers, employers are not permitted to ask these questions.
OSHA has also issued guidance that employers may conduct work site testing for COVID-19, including temperature checks and other health screening. Employers should ensure that any such testing is applied in a transparent manner applicable to all employees and consider ways to maintain confidentiality as required by the Americans with Disabilities Act. Additionally, if an employer creates any records related to health screening or temperature checks, such information may qualify as medical records subject to the Access to Employee Exposure and Medical Records standard (29 CFR 1910,1020) and confidentiality obligations.
Employers should consult state or local laws to confirm there are no additional requirements or prohibitions on such inquiries.
47. What steps should an employer take to keep the work environment clean?
The CDC recommends a number of steps to maintain a healthy work environment, including:
- Making improvements to the engineering controls using the building’s ventilation system.
- Supporting respiratory etiquette and hand hygiene. This includes, for example, making tissues available, providing soap and water, placing hand sanitizers in multiple locations, and displaying posters to remind individuals to wash their hands.
- Performing routine environmental cleaning and disinfection, particularly of surfaces that are frequently touched.
If an employee is suspected or confirmed to have coronavirus, the CDC recommends following its Interim Recommendations for U.S. Community Facilities with Suspected/Confirmed Coronavirus Disease 2019 (COVID-19).
Additionally, OSHA recently issued guidance on the need for employers to develop and implement strategies for basic hygiene (e.g., hand washing, cleaning and disinfection), social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training (available here).
48. Are there any other legal guidelines employers should be aware of to ensure workplace safety for employees?
Newly issued OSHA guidance identifies certain workplace protection measures for employers, including engineering controls (such as high-efficiency air filters, physical barriers, and negative pressure ventilation), administrative controls (such as work-at-home policies and discontinuing non-essential travel), and personal protective equipment (PPE). To determine what specific controls are needed, OSHA instructs employers to assess the “worker risk of occupational exposure,” which will vary by industry type and the likelihood of contact with known or suspected cases of infection. To assist employers with evaluating the risk of occupational exposure and controls, OSHA categorizes employees into four risk groups:
- Very High Exposure Risk:
- Healthcare employees (for example, doctors, nurses, dentists) performing aerosol-generating procedures on known or suspected pandemic patients (for example, cough-induction procedures, bronchoscopies, some dental procedures, or invasive specimen collection).
- Healthcare or laboratory personnel collecting or handling specimens from known or suspected pandemic patients (for example, manipulating cultures from known or suspected pandemic influenza patients).
- High Exposure Risk:
- Healthcare delivery and support staff exposed to known or suspected pandemic patients (for example, doctors, nurses, and other hospital staff that must enter patients’ rooms).
- Medical transport of known or suspected pandemic patients in enclosed vehicles (for example, emergency medical technicians).
- Performing autopsies on known or suspected pandemic patients (for example, morgue and mortuary employees).
- Medium Exposure Risk:
- Employees with high-frequency contact with the general population (such as schools, high-population-density work environments, and some high-volume retail).
- Lower Exposure Risk (Caution):
- Employees who have minimal occupational contact with the general public and other coworkers (for example, office employees).
While most workers in the United States will fall into the lower exposure risk level, OSHA’s guidance indicates that all employers should develop and implement an infectious disease preparedness and response plan and corresponding infection prevention measures. However, with employees having a medium, high, or very high-risk level, employers may have an obligation to implement additional precautionary measures (e.g., use of engineering controls or administrative controls to prevent exposure to COVID-19). (See OSHA guidance for recommendations per risk group at pages 20-25.)
Additionally, OSHA has been issuing specific guidance for numerous industries. These guidelines are available through the following links:
- Construction workforce
- Manufacturing industry
- Retail workers
- Package delivery workforce
- Meat and poultry processing workers and employers
- Retail pharmacies
- Nursing home and long-term care facility workers
- Stockroom and loading dock workers
49. When can an employee with COVID-19 return to work and can an employer require the employee to bring a doctor’s note?
Under current CDC guidance, workers with COVID-19 may return to work when the criteria to discontinue home isolation are met. There are different criteria based on testing and non-testing.
Employers may require a doctor’s note for employees to return to work, but the CDC states that “employers should not require a positive COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work. Healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner.” However, per CDC guidance, employees with COVID-19 should work with healthcare providers and/or public health officials to determine when they can discontinue home isolation. Employers should be flexible in the type of documentation they require for employees with COVID-19 to return to work. State and local laws, which may impose additional restrictions on requiring doctors’ notes, should also be consulted.
50. Under the Fair Labor Standards Act, can an employer reduce an hourly nonexempt employee’s hours as an alternative to a layoff?
Generally, under the Fair Labor Standards Act (FLSA), employers may prospectively reduce an hourly nonexempt employee’s hours provided the employee is paid at least the applicable minimum wage for all hours worked and paid overtime at the proper rate when overtime is due. Employers should consult state law regarding whether any further limitations exist regarding a reduction of hours and/or whether notice is required when reducing hours. Contracts, collective bargaining agreements, and/or employer policies may also limit an employer’s ability to reduce a nonexempt employee’s hours.
51. Under the Fair Labor Standards Act, can an employer reduce an hourly nonexempt employee’s hourly rate of pay as an alternative to layoff in light of issues the employer is experiencing due to the COVID-19 pandemic?
Generally, the Fair Labor Standards Act (FLSA) does not prevent an employer from reducing an hourly nonexempt employee’s hourly rate as long as the employee is paid at least the applicable minimum wage for all hours worked and paid overtime at the proper rate if overtime work is performed. Employers should consult state law to determine whether it imposes any limitations on changing an hourly rate and/or whether and when any notice should be provided to the employee. The existence of a contract, policy, or collective bargaining agreement may also prevent such a reduction in hourly wages.
52. Under the Fair Labor Standards Act, can an employer reduce an exempt employee’s salary as an alternative to layoff in light of issues the employer is experiencing due to the COVID-19 pandemic?
It depends. DOL Fact Sheet #70, which provides guidance on furloughs and other reductions in pay, helps address this question. Generally, if an exempt employee, who is required to be paid on a salary basis, performs any work during a workweek, the individual should be paid the predetermined, fixed salary regardless of the number of hours or days worked in the week. “[S]hort-term, day-to-day or week-to-week deduction[s] from the fixed salary for absences from scheduled work occasioned by the employer or its business operations” are not permitted.
However, the Department of Labor (DOL) has indicated that, during an economic or business slowdown, an employer can make a prospective reduction to a predetermined salary that is to be paid regularly to an employee who is exempt under part 541 of the code of federal regulation if the reduction is bona fide and not used to undermine the salary basis requirements. This means that the reduced salary still must continue to satisfy the salary basis test and the reduction cannot be related to the quantity or quality of work the employee performs. The DOL also has indicated that because physicians, lawyers, outside salespersons, and teachers in bona fide educational institutions are not subject to salary requirements, deductions from their salary or pay will not defeat the exemption.
A different analysis may apply to an employee of a public agency. Employers should also consult state law to determine whether it imposes any additional limitations and/or whether any notice should be provided to the employee. The existence of a contract or policy may also prevent a reduction in salary. Employers should consult with counsel if contemplating reductions to an exempt employee’s salary.
53. What is a furlough?
While there is no legal definition of a furlough under federal law, a furlough typically refers to a temporary layoff without formal termination of the employment relationship, with the expectation that the employees will be brought back to work when economic conditions improve. Some states may have their own definition.
54. What benefits can employees receive during a furlough?
If there has not been a termination of employment, not only can employees continue to receive their normal employee benefits, but in most situations their benefits should remain unchanged. However, employers must consult the terms of their plan documents to determine next steps.
Under the Families First Coronavirus Response Act, furloughed employees are not eligible for expanded family and medical leave or emergency sick leave. Please also consult any applicable local ordinances that may provide other leave, as those provisions may extend to furloughed employees.
55. Can employees keep their health insurance during a furlough?
If an employer wishes to stop subsidizing benefits, or wants to modify eligibility for certain health benefits, there may be implications and potential penalties under the Patient Protection and Affordable Care Act, also commonly referred to as Health Care Reform. If employees experience a reduction in pay in connection with the furlough, they may be eligible to make changes to their benefit elections if the cafeteria plan allows for that type of mid-year change-in-status event. Employers should consult with counsel to review not only their health and welfare benefit plans but also their retirement plans prior to making or communicating any changes with respect to benefits eligibility or contributions.
56. Are there immigration concerns with furloughs or reductions in hours or wages?
57. When do employers have to pay employees their final pay when there is a layoff?
There is no federal standard for when an employer must pay employees their final pay upon termination of employment. However, many states have laws that dictate when final payment must be made. Employers should also look to state law and their own policies to determine whether unused and accrued vacation, paid time off, or similar benefits must be paid out upon termination of employment. Finally, employers should beware of making unlawful deductions from final pay. Many states have laws that limit the circumstances in which an employer may make deductions from wages, and federal law prohibits deductions that would cause an employee to earn less than the minimum wage.
58. What happens to employees’ benefits during a layoff?
If there is a layoff and the employment relationship is severed, in most situations the employee benefits will cease on the same date as any other termination of employment.
59. After a layoff, can employees keep their company healthcare coverage?
No, employees’ coverage should be terminated on the date provided in the group health plan, and if applicable, COBRA coverage should be offered. Employers will also need to make sure that any conversion right notices for other insured benefits, such as life or disability insurance, are provided on a timely basis to employees.
60. If an employer is contemplating laying off or terminating an employee, should the employee’s immigration status be considered?
61. Are there laws that govern how an employer conducts a layoff?
Yes. The federal Worker Adjustment and Retraining Notification Act (WARN) provides protection to employees by requiring employers to provide at least 60 days’ advance notice to employees of certain layoffs and plant closings. WARN also requires covered employers to provide notice of the layoff and plant closings to the affected employee’s representative if the employees are a unionized workforce, the representative of the state’s dislocated worker unit, and the chief elected official of a unit of local government. Some states have passed their own WARN-like statutes, often called “mini-WARN” statutes, that may require shorter notice time frames or apply to more employers than are covered by the WARN Act. Employers should check if their states have a mini-WARN statute and ensure they comply with any of its requirements.
62. How does an employer know if it is a covered employer under the federal WARN Act?
In general, employers are covered by the federal WARN Act only if the employer either 1) employs 100 or more employees, excluding part-time employees; or 2) employs 100 or more employees, including part-time employees, who in the aggregate work at least 4,000 hours per week, exclusive of overtime hours. Note that state WARN provisions may have different thresholds.
63. What is required of covered employers under the federal WARN Act?
Generally, under WARN, covered employers must give at least 60 days’ advance notice of a mass layoff or a plant closure to:
- Employees who will be subject to a mass layoff or a plant closure.
- Representative(s) of affected employees in the case of unionized employees.
- State dislocated worker unit. For example, this may be a state agency that handles unemployment benefits.
- Chief elected official of the unit of local government. For example, a mayor or city manager.
There are specific requirements as to what each notice must contain. Employers should consult with counsel to ensure the notices meet the requirements of the (state and federal) WARN Act(s), if applicable.
64. What triggers the federal WARN notice requirement?
The federal WARN notice requirement is triggered in two situations:
- A mass layoff: This is a reduction in force that is not the result of a plant closure (discussed below) and results in an employment loss at a single site of employment during any 30-day period for at least 33% of the active employees, excluding part-time employees, and at least 50 employees, excluding part-time employees. If 500 or more employees (excluding part-time employees) are affected, the 33% requirement does not apply.
- A plant closure: This is the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss during any 30-day period at the single site of employment for 50 or more employees, excluding any part-time employees.
In each scenario, an “employment loss” includes a termination of employment that is not a termination for cause, a resignation, or retirement; a layoff exceeding 6 months; or a reduction in hours of work of individual employees of more than 50% during each month of any 6-month period.
Additionally, when counting employees expected to be affected by a mass layoff or plant closure, employers do not only count employees who are affected on a single day. Rather, employers must look ahead 90 days and behind 90 days to determine whether actions taken or planned will in the aggregate during a 90-day period reach the minimum numbers described above. Note that state provisions may differ; employers must comply with both, if applicable.
65. If an employer provides less than 60 days’ notice of a layoff or closure, is that a WARN violation?
Not necessarily. The WARN Act provides an exception to the 60-day notice requirement, called the “unforeseeable business circumstances” exception. This means that the mass layoff or plant closure was caused by business circumstances that were not reasonably foreseeable at the time that the 60-day notice would have been required. The Department of Labor has stated that circumstances which are not reasonably foreseeable include those caused by a sudden, dramatic, and unexpected action or condition outside the employer’s control. The COVID-19 pandemic and the government reactions to it would likely qualify as an unforeseeable business circumstance. The WARN Act also provides for “faltering company” and “natural disaster” exceptions to the 60-day notice requirement. If this exception applies, the employer must still give as much notice as is practicable.
If an employer is in a state covered by a “mini WARN” Act, the employer should also review the obligations to ensure that different obligations are not triggered. Some states have waived the 60-day notice requirement if the event is triggered by COVID-19 exigencies and the employer gives notice as soon as practicable. Note that some states may require the notice to include specific language beyond what the WARN Act specifies.
66. What happens if the employer does not give the federal WARN notice at all or makes a mistake in the federal WARN notice?
If employers fail to comply with the WARN Act’s requirements, employers could be subject to the following penalties:
- 60 days’ back pay, plus benefits, for each affected employee;
- Up to $500 per day to the local government where the mass layoff or plant closing occurred; and
- Attorneys’ fees and prejudgment interest.
There are no punitive damages under the WARN Act.
67. Are employers required to provide severance pay to employees who are subject to a layoff or plant closure?
Federal law does not mandate that employers provide severance pay to employees who are subject to a layoff or plant closure. However, employers may need to do so if it is promised in an employment agreement and/or the employer’s policies. Additionally, state and local laws may require severance pay. For example, New Jersey recently amended its WARN Act to require severance pay in an amount equal to one week of pay for every full year of employment to affected employees, regardless of whether advance notice is provided.
If an employer chooses to provide severance pay and is not required to do so under state or local law, the employer should consider an objective method for determining the amount of severance pay to be offered to each employee in an effort to avoid claims of discrimination. An example of an objective method of calculating severance pay may be offering, for example, a week of severance for every year the employee has worked for the company.
Additionally, an employer should consider providing severance pay contingent on the employee signing a release of claims. For employees over 40 years of age, and who are subject to a reduction-in-force, employers must provide the employee with 45 days to consider the agreement (although the employee can choose the sign the agreement earlier), a 7-day period after the employee has signed during which the employee can revoke the agreement, and a chart with the agreement that includes the job titles, ages, and who was selected and not selected for all employees in the decisional unit considered for the reduction in force.
68. What are some of the considerations related to COVID-19 that an employer should be thinking about if it has employees with temporary work authorization?
Employers who have employees working in the United States with temporary work authorization should evaluate the rapidly evolving restrictions on international travel and the potential impact on an employee’s immigration status. Further, employers need to consider the effect of lockdowns, closures, and remote work on document verification and case processing, as well as other procedures. If the employer intends to conduct layoffs, furloughs, or reduce hours, employers should take caution with their H-1B, E-3, and H-1B1 classified employees. Employers also need to carefully consider the ramifications of employment termination on their employees’ immigration status.
These issues are rapidly evolving, and employers should contact legal counsel to evaluate their particular situation.
69. An employer is hiring new employees, how does the employer comply with the physical presence requirement to complete I-9 documentation if the company is working remotely due to COVID-19?
The U.S. Department of Homeland Security (DHS) is allowing certain employers to defer the physical presence requirement of I-9 documentation inspection and is temporarily allowing electronic or remote review of I-9 documentation. The electronic or remote review must be completed within the normal I-9 deadlines established, and the I-9 form must be annotated to document the deviation in the normal review process. Only companies whose employees are working remotely as a result of the COVID-19 pandemic may utilize this I-9 process change; employees who are physically present at their workplace must follow routine I-9 document inspection procedures.
Employers should consult with legal counsel to determine whether they are eligible for the modified I-9 verification process, and to confirm the process that is required.
70. How long will the new I-9 procedures that allow for electronic or remote review of I-9 documentation last?
The new provisions mentioned in Q. 69 were set to expire on May 19. On May 14, DHS extended these provisions for an additional 30 days following the May 19 expiration date. Presumably, the extension is for the full 30 days or until the national emergency expires, whichever comes first.
Upon resumption of normal operations, all employees who underwent remote verification must undergo in-person verification within three business days.
Employers should consult with legal counsel to determine whether they are eligible for the modified I-9 verification process.
71. Are there immigration concerns with moving an employer’s workforce to a remote working arrangement?
Foreign national employees in H-1B, E-3, or H-1B1 status may work remotely under certain circumstances. If an employee’s work authorization does not contemplate a work from home option, the employee may work from home without filing a new Labor Condition Application (LCA) or amending their H-1B, E-3, or H-1B1 petition as long as the worker’s home is within the normal commuting distance of the workplace.
For prospective employees in H-1B, E-3, or H-1B1 status, there are new interim rules regarding LCA posting requirements. Employers should carefully consider the interim U.S. Department of Labor posting requirements with advice of legal counsel.
72. Are there immigration concerns with furloughs or reductions in hours or wages?
Yes. The DOL requires employers to pay the wages set forth in an employee’s Labor Condition Application (LCA). Potential problems can arise if the employer is seeking to furlough or reduce an H-1B, E-3, or H-1B1 classified employee’s hours or wages, especially if the new wage falls below the prevailing wage. These actions should be carefully considered with the advice of legal counsel.
73. If an employer is contemplating laying off or terminating an employee, should the employee’s immigration status be considered?
Yes, if employment termination is being considered, employers should also determine whether the immigration status of the employee may be affected. For example, most employees with company-sponsored temporary work authorization may lose their immigration status and/or ability to remain in the United States lawfully after their employment is terminated unless other steps are taken.
Additionally, certain immigration statuses require employers to meet certain obligations mandated by law. For example, the H-1B status may require an employer to pay for the employee’s return cost of transportation abroad. Whether an employer decides to terminate employees and how such an action may affect their immigration status must be examined with legal counsel.
74. Do the bans on travel from certain countries impact employees who are not U.S. citizens?
Generally, foreign nationals are restricted from entering the United States from the Schengen Area (comprising 26 European countries), the United Kingdom, Ireland, China, Brazil, and Iran. This does not include U.S. citizens and permanent residents or individuals who fall into other categories. Non-U.S. citizen or permanent resident employees may be restricted from traveling to the United States from these countries until the travel ban is lifted.
In addition, the Department of Homeland Security suspended non-essential travel of individuals from Canada and Mexico into the United States until April 20, 2020, but may reopen these borders earlier if circumstances permit or extend the closure of the borders. Essential travel includes, but is not limited to, U.S. citizens returning to the United States, individuals traveling to work in the United States, or certain “essential” individuals engaged in lawful cross-border trade, and individuals traveling for medical purposes. This travel suspension does not apply to air, freight rail, or sea travel between countries.
Due to the complexity and evolving nature of the closures, and due to reports of inconsistent application of the “non-essential” standard to individuals traveling to work in the United States, all travel for non-U.S. citizen employees should be carefully considered with advice of legal counsel.
75. Will U.S. consulate and embassy closures impact an employees’ ability to travel to the United States?
It may. The U.S. Department of State has suspended routine visa services at its embassies and consulates worldwide. Services to U.S. citizens as well as emergency or urgent visa services will still be provided. This will affect non-U.S. citizen employees’ ability to travel to the United States if they require visa services, including obtaining a visa stamp in their passports before being able to travel to the United States.
76. Will the COVID-19 pandemic impact the ability of an employee with an expiring work permit to lawfully remain in the United States?
It may. Effective March 18, 2020, U.S. Citizenship and Immigration Services (USCIS) has temporarily closed its field offices, asylum offices, and application support centers. Individuals who had application support center appointments will receive new appointment letters in the mail when normal operations resume. Individuals who had interviews at USCIS for immigration benefits have had those interviews cancelled and will likely have the interviews rescheduled when USCIS reopens. All other appointments must be rescheduled by contacting USCIS once the field offices reopen. These USCIS office closures could prevent individuals with expiring work permits from remaining in the United States lawfully. Employers with employees in this situation should consult with counsel and monitor developments carefully.
77. Will an employer’s ability to employ a foreign national be impacted by U.S. Citizenship and Immigration Services’ halt in accepting new requests for premium processing?
It may. On March 20, 2020, USCIS temporarily stopped accepting new requests for premium processing. However, in June, USCIS began accepting requests for premium processing in phases, depending on the type of petition. Please see the USCIS webpage for details. Depending on the specific situation and facts of a case, the suspension of premium processing can significantly affect an employer’s ability to employ a foreign national or a foreign national’s ability to remain in the United States. Employers should closely review their roster of foreign national employees and seek the advice of legal counsel on how to navigate the suspension of premium processing and the expected slow rollout of the resumption of premium processing.
78. Do the protections in the Coronavirus Aid, Relief, and Economic Security (CARES) Act apply to foreign nationals?
Foreign nationals may be ineligible for certain forms of aid under the CARES Act relief package. For example, both taxpayers and their spouses are required to have Social Security numbers on their tax return in order to receive direct cash assistance.
For questions about the application of the CARES Act to foreign nationals, please contact legal counsel.
79. As businesses reopen, may employers ask if employees are experiencing symptoms of COVID-19?
Yes. Employers may ask returning employees if they are experiencing symptoms of COVID-19, including fever, chills, cough, shortness of breath, or sore throat. Employers should monitor CDC guidance for additional listed symptoms such as sudden loss of smell or taste, nausea, vomiting, diarrhea, and muscle pain.
80. As businesses reopen, may employers take employees’ temperatures before permitting them to enter the workplace?
Yes, and some jurisdictions may require employers to do so. The EEOC has stated that employers may measure and maintain a log of employees’ body temperature (keeping in mind that some people with COVID-19 do not have fevers, and following recommended protocols for employee privacy). The CDC also recommends that conducting temperature screenings is an optional strategy for employers to use and sets forth protocols for conducting these screenings. If maintaining records of employee symptoms or diagnoses, employers must treat them as confidential medical records in compliance with the Americans with Disabilities Act.
81. As businesses reopen, may employers conduct daily in-person or virtual health checks before permitting an employee to enter the workplace?
Yes, and in certain jurisdictions, it may be required. According to the CDC, employers may consider conducting daily in-person or virtual health checks before an employee enters the work facility; however, these should be conducted in accordance with state and local public health authorities and, if available, the employer’s occupational health services.
The CDC also advises that if an employer is implementing in-person health checks, the checks should be conducted safely and respectfully. Employers should consider using social distancing, barriers or partition controls, or personal protective equipment (PPE) to protect the individual conducting the screenings. The CDC cautions that reliance on PPE alone is a less-effective control and more difficult to implement due to shortages relating to PPE and other training requirements.
Further, employers implementing health screens should follow the guidance from the EEOC as it pertains to confidentiality of medical information. Employers also should make certain that health screenings are as private as possible, and decisions about an individual’s risk should not be based upon protected characteristics such as race, age, or national origin.
Inevitably, conducting a health screen implicates a number of laws and considerations, including wage and hour considerations, privacy considerations, and OSHA considerations. The above represents guidance from the CDC but is not exhaustive of all the factors an employer should weigh in conducting health checks. Employers interested in implementing daily in-person or virtual health checks should consult with an attorney.
82. As businesses reopen, should employers implement policies and practices for social distancing?
Yes, the CDC recommends that employers alter their workspaces to help workers and customers maintain social distancing, when possible. The CDC proposes a number of strategies to help with physical separation of employees, including, but not limited to:
- Implementing flexible work sites;
- Implementing flexible hours;
- Increasing physical space between employees by modifying the work space;
- Closing or limiting access to common areas where employees will likely congregate or interact; and
- Prohibiting handshaking.
For a more comprehensive list, employers should refer to the CDC website or speak with an attorney to come up with strategies that work best for the particular business.
83. If employees are experiencing symptoms at work, can employers send them home?
84. As businesses reopen, may employers require employees to wear face masks and gloves or to wash their hands at certain intervals?
Yes. Employers may require the use of protective equipment (masks, gloves) and infection-control face masks. However, per guidance from the EEOC, employers need to accommodate for religious garb, allergies, or other conditions when requiring these workplace measures.
The CDC also recommends that employees and customers should wear cloth face coverings in public settings where social distancing measures are more difficult to maintain. However, wearing a face covering does not replace social distancing. In addition, various state and local jurisdictions have implemented orders and/or guidance regarding wearing face coverings. Employers should stay up to date on any applicable state or local guidance.
85. How should employers respond to employees who refuse to report to work due to fear or concern of contracting COVID-19?
An employer should talk to the employee and understand the basis of the employee’s fear or concern. If the employee has a fear or concern of contracting COVID-19 due to an underlying disability, the employer should engage in the interactive process and determine whether a reasonable accommodation can be made for that employee (such as permitting the employee to work remotely). See Q 92.
If the employee’s fears or concerns are not due to an underlying disability, the employer should seek to understand the employee’s specific concerns regarding the workplace and look into those concerns if the employee reports noncompliance with workplace safety measures. This is because an employee may be protected under the National Labor Relations Act (NLRA) or the Occupational Safety and Health Act (OSHA) if the employee objects to coming to work due to unsafe working conditions. Given that these issues are highly fact-specific, employers should consult with counsel to determine the best way to address these issues.
86. Can employers enforce liability waivers against their employees?
This is highly dependent upon state law. Courts have held that liability waivers between employers and employees can violate public policy and may be unenforceable. This may also implicate state workers’ compensation laws and OSHA liability that often cannot be waived.
87. With reopening of businesses, may employers require employees to travel?
The CDC continues to include guidance regarding considerations for travelers in the United States and recommends to “avoid all nonessential international travel.” In addition, there are a myriad of state and local orders and guidance requiring quarantine following travel except in limited circumstances. Employers should carefully consider the following factors when deciding whether to require employees to travel for business purposes:
- The mode of travel;
- The circumstances existing at the destination (i.e., level of outbreak);
- The employer’s business purpose for the requested travel;
- Whether there are alternatives to traveling, such as postponing travel or substituting an employee’s in-person appearance for participation via telephone or videoconference;
- Whether the trip constitutes “essential travel” pursuant to relevant state or local stay at home orders (if an order is applicable);
- The employee’s willingness to travel;
- Whether the employee is at a higher risk for severe illness from COVID-19; and
- Whether the travel will result in self-quarantine thereafter and the potential impact of such on business operations.
88. May employers require COVID-19 antibody testing before permitting employees to re-enter the workplace?
No. The EEOC has expressly stated employers may not require COVID-19 antibody testing before permitting employees to re-enter the workplace. Additionally, the CDC has explained that antibody test results “should not be used to make decisions about returning persons to the workplace.” But the EEOC has noted that a COVID-19 antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.
89. How can a company find out whether it is considered a critical infrastructure business, such that a different standard may apply for its employees to return to work?
The Cybersecurity and Infrastructure Security Agency has released a memorandum, updated May 28, 2020, regarding the identification of critical infrastructure workplaces during COVID-19. The Centers for Disease Control and Prevention (CDC) provides that “[s]tate and local officials make the final determinations for their jurisdictions about critical infrastructure workers.” The CDC also describes the process for allowing critical infrastructure employees to work if they have been exposed but are not showing symptoms. See Q. 12.
90. When may an employee return to work after self-isolating or quarantining due to testing positive for COVID-19, having symptoms of COVID-19, or being exposed to someone with COVID-19?
That depends. The CDC’s guidance states, “Employees should not return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers.” The CDC’s guidance on the criteria to discontinue home isolation depends on whether a test will be administered to determine if the person is negative for COVID-19.
If the person tested positive for COVID-19, showed symptoms, and will not receive additional testing, or if the person exhibited symptoms of COVID-19 and was not tested,* the person may return to work if the following 3 criteria are met:
- At least 3 days (72 hours) have passed since recovery (defined as resolution of fever without the use of fever-reducing medications);
- Improvement in respiratory symptoms (e.g., cough, shortness of breath); and
- At least 10 days have passed since the symptoms first appeared.
If the person tested positive for COVID-19, showed symptoms, and will receive additional testing, the person may return to work if the following 3 criteria are met:
- Resolution of fever without fever-reducing medications;
- Improvement in respiratory symptoms (e.g., cough, shortness of breath); and
- Negative COVID-19 results from at least 2 consecutive tests taken at least 24 hours apart.
If the person tested positive for COVID-19 but did not exhibit any symptoms, the person may return to work if:
- At least 10 days have passed since the individual’s first COVID-19 test that yielded a positive result; and
- The person remained asymptomatic.
If the person has simply been exposed to COVID-19 but did not exhibit any symptoms, the person may immediately return to work if:
- the employee is a critical infrastructure worker;
- the core job tasks cannot be done by other equally skilled and available in-person workers who have not been exposed (or by the employee remotely); and
- the employee follows the CDC recommendation to wear a face mask at all times while in the workplace for 14 days after last exposure. Consider whether to allow return if the 14-day period is not readily ascertainable.
If the employee is not a critical infrastructure worker and was exposed to COVID-19 via a household member, intimate partner, or being in close contact (less than 6 feet) for a prolonged period of time with an individual confirmed or suspected of having COVID-19, the CDC recommends that the employee self-isolate for 14 days after the last exposure.
*The CDC’s guidance is not clear on when people can return to work who have exhibited symptoms of COVID-19 and will not be tested. However, it seems that using the criteria for this strategy makes the most sense.
91. Can employers ask employees who were out on sick leave due to COVID-19-related symptoms or a positive diagnosis to provide some kind of “fitness for duty” verification before they return to work?
Yes, but the EEOC advises employers to consider loosening “fitness for duty” standards to accept forms, stamps, or emails certifying clearance to return to work following symptoms or a positive diagnosis, because doctors and healthcare professionals may be too busy to provide the formal documentation. The CDC likewise recommends that employers should not require a COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work. If employers do require such verifications, however, they should be sure to do so consistently to avoid any appearance of disparate treatment.
Be aware, also, that state and local jurisdictions may have orders in place governing whether employers can require fitness-for-duty verifications.
92. Once an employer’s business reopens, are employers required to offer leave or other accommodations to individuals who fear contracting COVID-19 or are within “vulnerable populations”?
Possibly. Simple concern about infection is not typically enough to rise to the level of a “disability” requiring reasonable accommodation. However, individuals with preexisting mental or physical conditions that might not otherwise require workplace accommodation may qualify for such under these circumstances. For example, individuals with otherwise-manageable anxiety disorders might have limited functioning at this time due to exacerbated symptoms and require workplace accommodations in order to continue performing essential job functions.
However, employers should not preemptively exclude from the workplace an employee who is within a group that the CDC identifies as potentially placing the employee at higher risk for severe illness if the employee contracts COVID-19. For example, referring to the Age Discrimination in Employment Act, the EEOC states, “The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.” Further, the EEOC has said, in relation to pregnancy, “Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.”
Rather, the employer should wait until the employee requests a reasonable accommodation, unless the employee’s disability poses a “direct threat” to the employee’s health that cannot be eliminated or reduced by reasonable accommodation. The direct threat requirement comes from the ADA and is a high standard. The EEOC explains that a “direct threat” means the employee has a disability that poses a “significant risk of substantial harm” to the employee’s own health. Merely having a condition identified by the CDC does not automatically meet the direct threat test. Rather, the employer must make an individualized assessment based on a reasonable medical judgment about the particular employee’s disability—not the disability in general—using the most current medical knowledge and/or the best available objective evidence. There are multiple factors the employer should consider: the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, the imminence of the potential harm, the severity of the pandemic in a particular area, the employee’s own health (for example, is the employee’s disability well-controlled), the employee’s particular job duties, and the likelihood that an individual could be exposed to the virus at the worksite. General measures that an employer may be taking to protect all workers, such as mandatory social distancing, also would be relevant.
The EEOC has stated, “Even if an employer determines that an employee’s disability poses a direct threat to the employee’s own health, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. This can involve an interactive process with the employee. If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework). An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself [or herself] that cannot be reduced or eliminated by reasonable accommodation.”
Further, some localities, such as the City of Los Angeles, also require paid leave be provided to “at risk” individuals (those over 65 years old, pregnant, with preexisting health conditions, etc.) even if they are otherwise healthy. Employers should check local regulations to ensure they are aware of obligations outside of the ADA context.
93. How does the pandemic affect an employer’s duty to engage in the interactive process regarding workplace accommodation requests, if at all?
Fear of contracting COVID-19 or experiencing symptoms of the disease are not necessarily a “disability” under the ADA. Despite the pandemic, employers still have a right (and a duty) to engage in the interactive process regarding accommodations. If an employee requests an accommodation, the employer still may ask questions and seek documentation to determine whether the employee has a “disability” as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment). Also, an employer may ask questions or request documentation to determine whether an accommodation is necessary and feasible.
Examples of permissible accommodation questions include inquiries about the nature of the limitation caused by the disability and how the proposed accommodation or some other measure will address it. Employers may also take into consideration whether the proposed accommodation will allow the employee to perform all “essential functions” of their position. Note that employers may begin this process before the workplace reopens or choose to skip the “interactive process” and simply grant accommodation requests in the interest of expedience.
94. What if the employer has granted an accommodation but, now that workplace restrictions or economic conditions regarding the business have changed, the employer needs to revisit whether the accommodation is “reasonable”?
Due to business exigencies caused by the pandemic, accommodations that would not have previously caused an “undue hardship” might now pose one. For example, obtaining certain items or reassigning job tasks on a temporary basis may be more challenging, or the sudden loss of business income or discretionary funds might make requests unreasonable in the current climate. Employers must take care, however, to explore alternate accommodations and to always document the reason for concluding that a requested accommodation would cause an “undue hardship.”
Alternatively, employers could consider adapting the interactive process and setting end dates for accommodations—while, for example, awaiting medical documentation or in anticipation of changing circumstances based on public health directives or business conditions—to avoid the argument that certain adjustments were granted on a long-term or permanent basis.
95. What are examples of accommodations that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self?
The EEOC has said, “Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular ‘marginal’ functions (less critical or incidental job duties as distinguished from the ‘essential’ functions of a particular position). In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).
These are only a few ideas. Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations. As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.”
96. Can employers take action against employees who do not have disabilities if they refuse to wear face masks or follow other workplace safety measures?
Generally, employers may take adverse action against employees who refuse to wear face masks pursuant to company policy unless the face mask causes a workplace hazard or cannot be worn due to an employee’s health restrictions. State and local orders may require the use of face masks in the workplace or by the general public.
97. How is unemployment eligibility determined?
Eligibility is determined by state law and varies by state. Generally, a state makes an initial eligibility determination considering whether the individual earned the minimum threshold amount during their base period, which is a 12-month or four-quarter period ending prior to the individual’s first date of unemployment; whether the individual was separated from employment through no fault of their own; and the individual’s immigration status.
98. Do eligible individuals need to continue proving their eligibility to receive unemployment?
Yes, but the requirements are set by state law and vary by state. After an individual’s initial benefit eligibility is determined, states generally require individuals to prove their ongoing eligibility, which may include showing that the individual is able and available to work, has not refused a suitable job offer, is actively seeking work, and is unemployed or underemployed. Many states have relaxed or temporarily waived some of the ongoing eligibility requirements for individuals separated from employment due to the COVID-19 pandemic.
99. How are weekly unemployment benefit amounts determined?
Unemployment benefit amounts are determined by state law and vary by state. Generally, states determine an individual’s weekly unemployment benefit award by looking at the individual’s highest-earning quarter during their base period (defined in Q. 97) and applying a statutory reduction formula to determine the individual’s weekly benefit amount. More detailed information can be found on the unemployment websites of individual states. Some states (such as California and New York) provide a benefits calculator so that individuals can estimate their weekly benefit payments.
100. Are furloughed employees eligible to receive unemployment benefits?
In most cases, yes. Unemployment eligibility and benefits are governed by state law, so eligibility qualifications vary from state to state. In response to the COVID-19 pandemic, many states allow employees whose hours have been reduced to receive some unemployment benefits. Many states have released guidance advising that employees who have been temporarily furloughed and asked to report back to work at a certain date may qualify for full unemployment benefits while not receiving any pay. State law dictates the amount of the benefits and the length of time employees may receive unemployment; accordingly, benefits may vary from state to state. If furloughed employees do not report to work but make use of sick leave, accrued vacation, or PTO during a furlough, they may be ineligible to receive unemployment benefits if they continue to receive their normal wages. Employers should consult counsel regarding state and local unemployment benefits law prior to implementing a furlough.
101. Can I require my employees to use their accrued PTO, vacation, or other forms of paid leave while my business is closed due to the COVID-19 pandemic?
That depends. With the exception of leave provided under the Families First Coronavirus Response Act (FFCRA), federal law generally does not govern policies that provide PTO, vacation, or other forms of paid leave. Employers who offer paid leave should review their internal policies. Additionally, state law may limit when an employer can require an employee to use paid leave such as sick leave, PTO, or vacation. States that require employers to provide paid sick leave generally will not permit an employer to force an employee to use paid sick leave for an unrelated purpose. Employers whose businesses are closed due to a public health order or as a result of the COVID-19 pandemic should consult counsel before requiring employees to use paid leave during the closure.
102. Are employees who are subject to a layoff or plant closure eligible for unemployment benefits?
In most cases, yes. Most, if not all, states permit employees to apply for unemployment benefits due to a layoff or plant closure. State law governs unemployment eligibility and benefits, so qualifications and benefit amounts vary from state to state. If terminated employees receive severance pay as part of the mass layoff or plant closure, they may be ineligible to receive unemployment benefits during the period of time they are receiving severance pay.
103. Have states relaxed their eligibility requirements for workers seeking unemployment benefits?
In response to the COVID-19 pandemic, many states have eliminated their one-week waiting period so that employees may receive unemployment benefits more quickly, and many are also waiving the requirement that individuals receiving unemployment benefits actively look for work. In addition, the U.S. Department of Labor has issued guidance encouraging states to be flexible when determining unemployment benefit eligibility for employees out of work due to the COVID-19 pandemic.
104. Does the CARES Act expand unemployment eligibility and increase unemployment benefits?
Generally speaking, yes. The Coronavirus Aid, Relief, and Economic Security (CARES) Act temporarily supplements existing unemployment benefit programs and creates a new temporary program. Under existing unemployment programs, individuals who are eligible for regular unemployment benefits may receive an additional $600 per week of unemployment through July 2020, and may be eligible to receive regular unemployment benefits for an additional 13 weeks. For individuals ineligible for unemployment benefits under existing programs, the temporary Pandemic Unemployment Assistance program is intended to provide unemployment benefits to individuals who are otherwise able to work and available for work except that they are unemployed, partially unemployed, or unable or unavailable to work because of the COVID-19 pandemic. Eligibility and payments relating to the CARES Act unemployment benefit will be determined and administered by state unemployment agencies, who continue to issue and update eligibility guidance for regular unemployment and CARES Act unemployment funds. Most, if not all, states advise that unemployment eligibility, benefit amounts, and benefit periods are determined on a case-by-case basis. Employers with questions regarding the applicability of regular and CARES Act unemployment benefits should consult counsel.
105. Can an individual receiving unemployment benefits work part-time and still receive benefits?
It depends. Unemployment benefit eligibility, amounts, earnings thresholds, and reduction formulas are determined by state law and vary by state. In response to the COVID-19 pandemic, many states allow employees with reduced hours to receive some unemployment benefits. If an employee was terminated and then brought back on a part-time schedule, they may be eligible for partial unemployment benefits. An employee may be disqualified if their weekly wages exceed their state’s weekly earnings threshold. An employee who receives some wages, but less than the state’s earnings threshold, will have their weekly benefits reduced. Weekly earnings thresholds and benefit reduction formulas are set by state law and vary by state.
106. How much can an eligible employee earn in a week and still receive unemployment benefits?
Whether an employee can earn wages and still receive unemployment benefits is determined by state law. Additionally, state laws determine earnings thresholds and reduction formulas for employees working reduced or part-time schedules.