Archive for March, 2020

COVID-19. What Employers Can do Now – Part 5.

Late on March 18th, President Trump signed into law the Families First Coronavirus Response Act (HR 6201), which is aimed at containing the widening effects of COVID-19. Among other things, the Families First Act creates several significant new leave and sick pay obligations for covered employers.  Those obligations will go into effect  on April 2, 2020, and expire December 31, 2020.

FMLA Leave

First, the Act creates the “Emergency Family and Medical Leave Expansion Act” which will give eligible employees of companies with fewer than 500 employees the right to take leave from their jobs for certain qualifying needs. An eligible employee is one who has been employed by the employer for 30 or more days and who has a “qualifying need related to a public health emergency.” Both full- and part-time employees are eligible.  A “qualifying need” is defined as being unable to work (or telework) due to a need for leave to care for the employee’s minor child if the child’s elementary or secondary school or place of care has been closed, or a child care provider is unavailable, due to a public health emergency.

Significantly, the provisions in the original version of HR 6201 allowing for FMLA leave due to an employee exhibiting symptoms of COVID-19 or to care for a family member exhibiting symptoms of COVID-19 were removed from the final legislation.

If an employee takes qualifying leave under the FMLA Expansion Act, the employee can take the first 10 days of leave as unpaid leave. The employee may elect to use any accrued vacation, personal or medical or sick leave instead of taking unpaid leave. After the 10 days, the employer shall provide partial paid leave for each additional day of qualifying leave. The payment for leave must be equal to at least 2/3 of the employee’s regular rate of pay multiplied by the number of hours the employee would otherwise have been scheduled to work. For employees without a fixed schedule, the employer can use a 6-month average of their daily hours worked.  Pay is capped at $200 per day and $10,000 in total per eligible employee.  Employees are entitled to take up to 12 weeks for this new qualifying need or the usual FMLA-qualifying reasons.  Employees taking leave would be entitled to job restoration.  Smaller employers (i.e., those with less than 25 employees) may be able to deny reinstatement under certain very limited circumstances provided they make reasonable efforts to offer the employee an equivalent alternative position.  If those efforts fail, the employer must attempt to contact the employee to offer an equivalent position that becomes available within 12 months of when the health emergency concludes or the employee’s leave ends, whichever is earlier.

The Act also gives the Secretary of Labor the right to issue regulations exempting employers with less than 50 employees from the leave obligation if it is determined that the obligation would “jeopardize the viability of the business as a going concern.” It remains to be seen exactly if and how this will be implemented, but it appears that this exemption would be handled on an employer-by-employer basis.

The Families First Act did not change the FMLA’s health benefit continuation provisions, which requires an employer to continue group health coverage for an employee on FMLA leave.  Whether an employee’s other benefits will continue if the employee takes leave for a public health emergency depends on the terms of the benefit plan documents and leave policies. Whether an employee’s benefits will continue during the paid sick leave provided under the Act (discussed below) also depends on the employer’s benefit plan documents and leave policies, so employers should check their benefit plan documents and leave policies. Plan amendments may be necessary to change your benefit continuation policies or procedures. 

Sick Leave

The Families First Act also creates the “Emergency Paid Sick Leave Act” which requires all employers under 500 employees to provide paid sick time to all employees (even new hires and part-time employees) who are unable to work or telework because:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
  3. The employee is experiencing symptoms of COVID 19 and is seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to a quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  5. The employee is caring for a son or daughter of the employee if the school or place of care of the son or daughter has been closed, or their child-care provider is unavailable due to COVID-19 precautions.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and Secretary of Labor.

Full time employees who qualify for paid sick time are eligible for up to 80 hours of paid leave.  Part time employees are entitled to leave in an amount equal to the average number of hours they work over a two-week period.   Employees must receive full pay, up to $511 per day and $5,111 in total, for time missed due to their own health reasons (reasons 1-3 above), and must be paid two-thirds (2/3) pay, up to $200 per day and $2,000 in total, for time missed to care for a child or another individual, or because they are off work due to other approved “substantially similar conditions” (reasons 4-6 above).  Unused paid sick leave does not carry over from year-to-year and does not have to be paid out upon termination of employment.

Paid Sick Leave is in addition to any other paid leave the employee is entitled to, so for Michigan employers, that means it is in addition to leave time under the Paid Medical Leave Act. 

Other Notable Provisions

The Families First Act will provide dollar-for-dollar payroll tax credits for employers to help offset the cost of paid FMLA leave and paid sick leave. 

The Act prohibits any cost-sharing for diagnostic products for the detection of COVID-19 and for health care provider office visits, urgent care center visits and emergency room visits that result in an order for or administration of the diagnostic product. The law also prohibits any pre-authorization or other medical management requirements for such services.

COVID-19. What Employers Can do Now – Part 4.

None of you are going to be surprised that everybody is publishing something about what is going on with COVID-19. I thought I would take a second to put everything we at good old WN+J have done, from employment information, to benefits information and even some tax and insurance information. So here we go:

COVID-19: Important Employee Benefit Considerations
http://www.wnj.com/Publications/COVID-19-Important-Employee-Benefit-Considerations
HR 6201 – The Impact to Employers and Employees
http://www.wnj.com/Publications/HR-6201-%E2%80%93-The-Impact-to-Employers-and-Employees
HR 6201 to Create Tax Credits to Help Employers Amid COVID-19 Crisis
http://www.wnj.com/Publications/HR-6201-to-Create-Tax-Credits-to-Help-Employers-Am
Coronavirus: Insurance Coverage for Business-Related Losses?
http://www.wnj.com/Publications/Coronavirus-Insurance-Coverage-for-Business-Relate 12
Federal Agencies Issue COVID-19 Guidance and Resources to Assist Employers and Employees
http://www.wnj.com/Publications/Federal-Agencies-Issue-COVID-19-Guidance-and-Resou
Responding to the Threat of COVID-19 in Your Workforce
http://www.wnj.com/Publications/Responding-To-the-Threat-of-COVID-19-in-Your-Workf

So that should be everything we have published so far. Like everything else in this weird time we are living, these things will be changing fast, so I will try to keep this as up to date as I can.

COVID-19. What Employers Can do Now – Part 3. UPDATED

Here is the latest update on what is going on in DC from Brianna Richardson of our Employee Benefits Group.  Well, when things move this fast, we are going to have to do some things we don’t normally do, and I am starting with updating this post.  Brianna did such a good job getting this done that we had it posted before the bill was actually passed.  The bill passed by the House had some changes in it from the proposed Bill Brianna reviewed.  Here is what the Bill as passed has to say about your obligations as an employer.  DON’T’ FORGET, the Senate still has to deal with this and then the President has to sign it, so it may change again.  If it does we will update this post again.

Yep changes have caught up to this one, Go here.
http://zomichiganemploymentlaw.wnj.com/?p=863

COVID-19: What Employers Can do Now – Part 2.

Well, things have changed just a bit since I last posted on this subject, so here is what we are going to do.  In this post I am just going to give the links to the most up to date information we have from the CDC, OSHA, the DOL and the Michigan Department of Health and Human Services.  In later posts we will talk about what else is happening, including the bill currently before Congress.

So, here are the links to the most up to date information from the various government agencies:

The CDC’s resources for Businesses and Employers is here:  https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html

This link to the Interim Guidance for Businesses and Employers is here:  https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

We also have Interim Guidance from OSHA, both generally and for employers, that you can find here: https://www.osha.gov/SLTC/covid-19/controlprevention.html, and here: https://www.osha.gov/Publications/OSHA3990.pdf, respectively.

The current FAQs from the DOL which you can find here: https://www.dol.gov/agencies/whd/pandemic

Finally, you will want to check out the EEOC’s guidance on the ADA, the Rehab Act and the Coronavirus here:  https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm, which links to the Guidance the EEOC issued during the H1N1 pandemic here:  https://www.eeoc.gov/facts/pandemic_flu.html

Don’t forget, when you are thinking about conducting medical tests, like taking all employees’ temperatures, this guidance says: 

Direct threat is an important ADA concept during an influenza pandemic.

Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.

During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

Which gets us to what is going on at the state level.  That is important too. For those of us in Michigan, the State has a website for here:  https://www.michigan.gov/coronavirus

You should also check out this News Release from the State https://www.michigan.gov/coronavirus/0,9753,7-406-98158-521463–,00.html, which links to a PDF MDHHS, Interim Recommendations for COVID-19 (final).pdf

This last link from the State has the following current recommendations for workplaces:

  1. Encourage employees to stay home when sick and to notify supervisors of illness.
  2. Communicate and reinforce best practices for washing hands covering coughs and sneezes.
  3. Regularly clean and disinfect frequently touched surfaces like doorknobs, keyboards, cell phones, and light switches.
  4. Ensure hand hygiene supplies are readily accessible throughout the workplace.
  5. Encourage staff to tele-work when feasible, particularly individuals at risk of severe illness
  6. Implement social distancing measures as feasible, including limiting in-person meetings.
  7. Limit large work-related gatherings, (e.g., staff meetings and after-work functions).
  8. Limit non-essential work travel.
  9. Cancel or postpone large gatherings, conferences, and sporting events (e.g., greater than 100 people in a shared space).
  10. Discourage employees from eating meals in a large group setting such as a cafeteria
  11. Tailor continuity of operations plans to the COVID-19 threat.

That is it for now, but we will have more as it becomes available.