Resources for Employers and Employees in Response to the Coronavirus

By now, we have all heard how important it is to stay inside and "flatten the curve." There is not a single American who has not been impacted by the current coronavirus outbreak. With schools being closed, businesses being shuttered, and government functions being doled out on an "essential" basis, the impact is being felt far and wide. It is the virtual Wild, Wild West, with so much uncertainty and so many questions. I thought we would use the space in this column to take a look at some of the guidance and direction from our local, state, and federal officials.

Centers for Disease Control and Prevention

Some simple tips recommended by the Centers for Disease Control and Prevention (CDC) are very useful. The CDC recommends that employers actively encourage sick employees to stay home and not come to work until they are free of fever (100.4°F or greater). Employees who appear to have acute respiratory illness symptoms (e.g., cough, shortness of breath) upon arrival to work, or become sick during the day, should be separated from other employees and sent home immediately.

Employers should ensure that sick-leave policies are flexible and consistent with public health guidance and that employees are aware of these policies. For employees who are sick with acute respiratory illness, eliminate the need for a healthcare provider's note to validate their illness or return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.

To the extent a business is operating in the Stone Age and does not already provide for it, employers should maintain flexible policies that permit employees to stay home to care for a sick family member and work remotely.

Families First Coronavirus Response Act

On March 18, the U.S. Congress passed the Families First Coronavirus Response Act (FFCRA). President Trump signed the measure into law the same day. The law goes into effect on April 2 and continues for the remainder of calendar year 2020. This law includes numerous emergency measures to combat the ongoing Covid-19 pandemic, including important changes to unemployment compensation, and establishes paid sick leave. The law also expands eligibility for paid family leave to care for healthy children in certain circumstances.

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

Is subject to a federal, state, or local quarantine or isolation order related to Covid-19;
Has been advised by a healthcare provider to self-quarantine related to Covid-19;
Is experiencing Covid-19 symptoms and is seeking a medical diagnosis;
Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
Is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to Covid-19; or
Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Employers are immediately required to pay the employee's full wages, capped at $511 per day and $5,110 in the aggregate, for leave taken for reasons 1, 2, or 3. For leave reasons 4 or 6: Employees taking leave are entitled to pay at two-thirds their regular rate, capped at $200 per day and $2,000 in the aggregate. For leave reason 5, employees taking leave are entitled to pay at two-thirds their regular rate, up to $200 per day and $10,000 in the aggregate (over a 12-week period).

The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers and to private employers with fewer than 500 employees. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern. As for who pays for the leave, it is for the employer to pay, but the law provides for a fully refundable tax credit to small businesses to reimburse for all expenses due to the new leave mandates. The paid leave is subject to employee payroll taxes but not to employer payroll taxes.

Employers are also required to provide additional job-protected leave for child care under expanded Family and Medical Leave Act (FMLA) provisions, if the required leave is greater than 10 days, and will be available up to 12 weeks. Under the amended FMLA provisions, when leave is needed due to a school or day care closure, the employer can provide the first 10 days of leave unpaid, then subsequent absences for this reason must be paid at two-thirds of the employee's regular rate of pay. The act includes a cap of $200 a day and $10,000 in aggregate. If the first 10 days are unpaid, an employee may elect to substitute any accrued vacation leave, personal leave, or medical/sick leave for the unpaid leave, or the employee could be compensated under the paid sick leave portion, above. For the duration of the leave, an employee is to be compensated at two-thirds of her or his regular rate of pay, not to exceed $200/day or $10,000 in the aggregate. The closure of the child's school or childcare is the only reason allowed under the added FMLA provisions and the only reason allowed for paid leave under the FMLA.

There is an exemption for employers with fewer than 25 employees if operating conditions change and positions are eliminated as a result of the public health emergency during the period of leave. These employers must make reasonable efforts to restore the employee to the position for a period of one year following the end of the public health emergency or 12 weeks after the employee takes leave, whichever is earlier. This provision does not apply to the paid sick leave portion of the act.

The law also prohibits retaliation against an employee for utilizing their paid sick leave benefits. Additionally, an employer may not require an employee to find a replacement worker as a condition of using paid family leave.

New EEOC Guidance on Covid-19

On March 18, the Equal Employment Opportunity Commission (EEOC) published new guidance regarding the interplay between Covid-19 and other federal disability protections titled "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act." In light of the World Health Organization's declaration that Covid-19 is now a global pandemic, the EEOC has revised its guidance on handling pandemics to be consistent with the ADA. Some of the revised provisions state:

During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For Covid-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Employers may measure employees' body temperature. However, employers should be aware that some people with Covid-19 do not have a fever.
Employers may require employees with symptoms of Covid-19 to stay home.
Employers may require a doctor's note certifying the employee's fitness for duty if he has exhibited Covid-19.
Employers may measure applicants' body temperature as part of a post-offer, pre-employment medical exam and may screen job applicants for symptoms of Covid-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.
Employers may delay a job applicant's start date due to Covid-19 or its symptoms, and if necessary may withdraw the job offer, since the applicant cannot safely enter the workplace.

Unemployment Compensation

The FFCRA provides for additional funds of $1 billion from the federal government to assist states in managing unemployment benefits. Half of the funding immediately goes to states to manage their programs and the other half is for emergency grants if the state sees an increase of at least 10 percent in unemployment claims.

Guidance for Employers Dealing with COVID-19

In response to the crisis, Montgomery County, Pennsylvania, immediately set up a website with critical news and information. The county issued an online "Guidance for Employers Dealing with Covid-19" with tips advising employers to:

Maintain open lines of communication with employees;

Ensure your business has a continuity-of-operations plan;

Cancel or postpone events, meetings, trainings, and other face-to-face interactions that do not constitute core business operations;

Adopt behaviors and encourage employees to maintain high standards of workplace and workspace cleanliness, as well as "social distancing" behavior;

Post information throughout the workplace on Covid-19 mitigation and preparedness;

Work with suppliers, customers, and vendors to address and/or prepare for service and supply-chain disruptions proactively.

Confirm with benefits providers and insurers how they are supporting your business and employees related to Covid-19;

Consider extending allowances for sick leave to employees, and encourage and support employees who use sick time to go home and contact the appropriate medical provider about testing;

Enact policies and work schedules that minimize exposure and risk, particularly to those employees with a higher risk of complications from Covid-19 infection; and

Enact policies that support employees who need to be isolated or quarantined after exposure.

There are plenty of resources out there for employers and employees as we all navigate this unprecedented disruption into our lives and careers. The virus has the potential to infect as many as 40 percent to 60 percent of the U.S. population. With aggressive containment measures, social distancing, flexible leave policies, and a common sense approach, we can stem the tide and #FlattenTheCurve.

Businesses will recover. Workers will return to work. The economy will bounce back. Until then, stay safe, stay healthy, and call your mother.

Jeffrey Campolongo, founder of the Law Office of Jeffrey Campolongo, focuses his practice on employment and entertainment law. For over a decade, he has been devoted to counseling employees, working professionals and small businesses in employment discrimination and human resource matters.