Midsized businesses applying for certain loan under the CARES Act should be aware that terms may include a union-neutrality obligation for the term of the loan

Companies employing 500-10,000 workers should be aware, when considering loans under the CARES Act that sec. 4003(c)(3)(D)(I)(X) will require, as a term of that loan, that they “remain neutral in any union organizing effort for the term of the loan.” That language (emphasis added) reads, as follows:

(D) Assistance for mid-sized businesses.–
(i) In general.–Without limiting the terms and
conditions of the programs and facilities that the
Secretary may otherwise provide financial assistance to
under subsection (b)(4), the Secretary shall endeavor to
seek the implementation of a program or facility described
in subsection (b)(4) that provides financing to banks and
other lenders that make direct loans to eligible businesses
including, to the extent practicable, nonprofit
organizations, with between 500 and 10,000 employees, with
such direct loans being subject to an annualized interest
rate that is not higher than 2 percent per annum. For the
first 6 months after any such direct loan is made, or for
such longer period as the Secretary may determine in his
discretion, no principal or interest shall be due and
payable. Any eligible borrower applying for a direct loan
under this program shall make a good-faith certification
that–

(I) the uncertainty of economic conditions as of
the date of the application makes necessary the loan
request to support the ongoing operations of the
recipient;
(II) the funds it receives will be used to retain
at least 90 percent of the recipient’s workforce, at
full compensation and benefits, until September 30,
2020;
(III) the recipient intends to restore not less
than 90 percent of the workforce of the recipient that
existed as of February 1, 2020, and to restore all
compensation and benefits to the workers of the
recipient no later than 4 months after the termination
date of the public health emergency declared by the
Secretary of Health and Human Services on January 31,
2020, under section 319 of the Public Health Services
Act (42 U.S.C. 247d) in response to COVID-19;
(IV) the recipient is an entity or business that is
domiciled in the United States with significant
operations and employees located in the United States;
(V) the recipient is not a debtor in a bankruptcy
proceeding;
(VI) the recipient is created or organized in the
United States or under the laws of the United States
and has significant operations in and a majority of its
employees based in the United States;
(VII) the recipient will not pay dividends with
respect to the common stock of the eligible business,
or repurchase an equity security that is listed on a
national securities exchange of the recipient or any
parent company of the recipient while the direct loan
is outstanding, except to the extent required under a
contractual obligation that is in effect as of the date
of enactment of this Act;
(VIII) the recipient will not outsource or offshore
jobs for the term of the loan and 2 years after
completing repayment of the loan;
(IX) the recipient will not abrogate existing
collective bargaining agreements for the term of the
loan and 2 years after completing repayment of the
loan; and
(X) that the recipient will remain neutral in any
                union organizing effort for the term of the loan.

850 KOA listeners, check out this article

Thank you to all the great callers and 850 KOA host, the amazing Mike Rice. This New York Times article just came out and will be of interest to many of today’s callers. I’m looking forward to talking with you all again soon. We will get through this together. Colorado strong!

DOL updates its Q&A re new coronavirus sick-/FMLA- leave law

The DOL has updated its Q&A regarding the new coronavirus sick-/FMLA- leaves. Added answers include:

  • Employees who are already or who become subject to layoffs/furloughs will generally not be entitled to either of these new leaves.
  • Employees who are assigned to telework are only entitled to these new leaves if they are unable to telework as a result of one of the qualifying reasons for these sick-/FMLA-leaves.
  • Employees, including teleworking employees, are entitled to intermittently take both of these new sick-/FMLA-leaves (assuming they meet one of the qualifying reasons).

Employers of fewer than 500 should review the updated Q&A immediately in its entirety.

BREAKING NEWS: DOL has issued the poster REQUIRED to be “posted” re coronavirus sick-/FMLA- leave

Employers who are subject to the new FFCRA (Families First Coronavirus Response Act) sick-/FMLA- leave are required to post a poster by the FFCRA’s effective date, April 1, 2020. The EEOC has just issued the required poster along with a Q&A that answers common questions employers will have regarding the same, including explaining that, where a workplace has suffered reductions due to coronavirus it may be necessary to issue the poster by email or so-called snail mail — but not to already furloughed or laid off workers nor in languages other than English. The Q&A provides, as follows:

 

DEFINITIONS

“Paid sick leave” – means paid leave under the Emergency Paid Sick Leave Act.

“Expanded family and medical leave” – means paid leave under the Emergency Family and Medical Leave Expansion Act.

QUESTIONS & ANSWERS

  1. What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act?The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.
  2. As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

    In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

  3. If I am a private sector employer and have 500 or more employees, do the Acts apply to me?No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.[1]
  4. If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.
  5. How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.
  6. When calculating pay due to employees, must overtime hours be included?Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

    If the employee’s schedule varies from week to week, please see the answer to Question 5, because the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee.

    Please keep in mind the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave as described in the answer to Question 7.

    Please note that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.

  7. As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?It depends on your normal schedule as well as why you are taking leave.If you are taking paid sick leave because you are unable to work or telework due to a need for leave because you (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, you will receive for each applicable hour the greater of:
    • your regular rate of pay,
    • the federal minimum wage in effect under the FLSA, or
    • the applicable State or local minimum wage.

    In these circumstances, you are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

    If you are taking paid sick leave because you are: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, you are entitled to compensation at 2/3 of the greater of the amounts above.

    Under these circumstances, you are subject to a maximum of $200 per day, or $2,000 over the entire two week period.

    If you are taking expanded family and medical leave, you may take paid sick leave for the first ten days of that leave period, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer’s policy. For the following ten weeks, you will be paid for your leave at an amount no less than 2/3 of your regular rate of pay for the hours you would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, you will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when you are on leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

    To calculate the number of hours for which you are entitled to paid leave, please see the answers to Questions 5-6 that are provided in this guidance.

  8. What is my regular rate of pay for purposes of the FFCRA?For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave.[2] If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.If you are paid with commissions, tips, or piece rates, these amounts will be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the FLSA.

    You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

  9. May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?No. You may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.
  10. If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both—how do they interact?You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.Please note that you can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
  11. Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.
  12. Is all leave under the FMLA now paid leave?No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
  13.  Are the paid sick leave and expanded family and medical leave requirements retroactive?No.
  14. How do I know whether I have “been employed for at least 30 calendar days by the employer” for purposes of expanded family and medical leave?You are considered to have been employed by your employer for at least 30 calendar days if your employer had you on its payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, if you want to take leave on April 1, 2020, you would need to have been on your employer’s payroll as of March 2, 2020.If you have been working for a company as a temporary employee, and the company subsequently hires you on a full-time basis, you may count any days you previously worked as a temporary employee toward this 30-day eligibility period.
  15. What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits.  If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, you may also require your employee to provide you with any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.
  16. What documents do I need to give my employer to get paid sick leave or expanded family and medical leave?You must provide to your employer documentation in support of your paid sick leave as specified in applicable IRS forms, instructions, and information.Your employer may also require you to provide additional in support of your expanded family and medical leave taken to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons. For example, this may include a notice of closure or unavailability from your child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider. Your employer must retain this notice or documentation in support of expanded family and medical leave, including while you may be taking unpaid leave that runs concurrently with paid sick leave if taken for the same reason.

    Please also note that all existing certification requirements under the FMLA remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA. For example, if you are taking leave beyond the two weeks of emergency paid sick leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the FMLA if required by your employer.

  17. When am I able to telework under the FFCRA?You may telework when your employer permits or allows you to perform work while you are at home or at a location other than your normal workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.
  18. What does it mean to be unable to work, including telework for COVID-19 related reasons?You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework.If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.
  19. If I am or become unable to telework, am I entitled to paid sick leave or expanded family and medical leave?If your employer permits teleworking—for example, allows you to perform certain tasks or work a certain number of hours from home or at a location other than your normal workplace—and you are unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then you are entitled to take paid sick leave.Similarly, if you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. Of course, to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.
  20. May I take my paid sick leave or expanded family and medical leave intermittently while teleworking?Yes, if your employer allows it and if you are unable to telework your normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, you and your employer may agree that you may take paid sick leave intermittently while teleworking. Similarly, if you are prevented from teleworking your normal schedule of hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you and your employer may agree that you can take expanded family medical leave intermittently while teleworking.You may take intermittent leave in any increment, provided that you and your employer agree. For example, if you agree on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.

    The Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the Department is supportive of such voluntary arrangements that combine telework and intermittent leave.

  21. May I take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:
    • You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
    • You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
    • You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    • You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
    • You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

    Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

    If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

    In contrast, if you and your employer agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if your child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.

    The Department encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave on less than a full work day for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the Department is supportive of such voluntary arrangements.

  22. May I take my expanded family and medical leave intermittently while my child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if I am not teleworking?Yes, but only with your employer’s permission. Intermittent expanded family and medical leave should be permitted only when you and your employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.The Department encourages employers and employees to collaborate to achieve flexibility. Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.
  23. If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.
  24. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  25. If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  26. If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  27. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.
  28. If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work? No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced (see Question 5).
  29. May I collect unemployment insurance benefits for time in which I receive pay for paid sick leave and/or expanded family and medical leave?No. If your employer provides you paid sick leave or expanded family and medical leave, you are not eligible for unemployment insurance. However, each State has its own unique set of rules; and DOL recently clarified additional flexibility to the States (UIPL 20-10) to extend partial unemployment benefits to workers whose hours or pay have been reduced. Therefore, individuals should contact their State workforce agency or State unemployment insurance office for specific questions about eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  30. If I elect to take paid sick leave or expanded family and medical leave, must my employer continue my health coverage? If I remain on leave beyond the maximum period of expanded family and medical leave, do I have a right to keep my health coverage?If your employer provides group health coverage that you’ve elected, you are entitled to continued group health coverage during your expanded family and medical leave on the same terms as if you continued to work. If you are enrolled in family coverage, your employer must maintain coverage during your expanded family and medical leave. You generally must continue to make any normal contributions to the cost of your health coverage. See WHD Fact Sheet 28A: https://www.dol.gov/agencies/whd/fact-sheets/28a-fmla-employee-protections.If you do not return to work at the end of your expanded family and medical leave, check with your employer to determine whether you are eligible to keep your health coverage on the same terms (including contribution rates). If you are no longer eligible, you may be able to continue your coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). COBRA, which generally applies to employers with 20 or more employees, allows you and your family to continue the same group health coverage at group rates. Your share of that cost may be higher than what you were paying before but may be lower than what you would pay for private individual health insurance coverage. (If your employer has fewer than 20 employees, you may be eligible to continue your health insurance under State laws that are similar to COBRA. These laws are sometimes referred to as “mini COBRA” and vary from State to State.) Contact the Employee Benefits Security Administration at https://www.dol.gov/agencies/ebsa/workers-and-families/changing-jobs-and-job-loss to learn about health and retirement benefit protections for dislocated workers.

    If you elect to take paid sick leave, your employer must continue your health coverage. Under the Health Insurance Portability and Accountability Act (HIPAA), an employer cannot establish a rule for eligibility or set any individual’s premium or contribution rate based on whether an individual is actively at work (including whether an individual is continuously employed), unless absence from work due to any health factor (such as being absent from work on sick leave) is treated, for purposes of the plan or health insurance coverage, as being actively at work.

  31. As an employee, may I use my employer’s preexisting leave entitlements and my FFCRA paid sick leave and expanded family and medical leave concurrently for the same hours?No. If you are eligible to take paid sick leave or expanded family and medical leave under the FFCRA, as well as paid leave that is already provided by your employer, unless your employer agrees you must choose one type of leave to take. You may not simultaneously take both, unless your employer agrees to allow you to supplement the amount you receive from paid sick leave or expanded family and medical leave under the FFCRA, up to your normal earnings, with preexisting leave. For example, if you are receiving 2/3 of your normal earnings from paid sick leave or expanded family and medical leave under the FFCRA and your employer permits, you may use your preexisting employer-provided paid leave to get the additional 1/3 of your normal earnings so that you receive your full normal earnings for each hour.
  32. If I am an employer, may I supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?If your employee chooses to use existing leave you have provided, yes; otherwise, no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including Federal employees. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid or exceeds the limits set forth under Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.However, you are not required to permit an employee to use existing paid leave to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. Further, you may not claim, and will not receive tax credit, for such supplemental amounts.
  33. If I am an employer, may I require an employee to supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?No. Under the FFCRA, only the employee may decide whether to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. The employee would have to agree to use existing paid leave under your paid leave policy to supplement or adjust the paid leave under the FFCRA.
  34. If I want to pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can I do so and claim a tax credit for the entire amount paid to them?You may pay your employees in excess of FFCRA requirements. But you cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits.
  35. I am an employer that is part of a multiemployer collective bargaining agreement, may I satisfy my obligations under the Emergency Family and Medical Leave Expansion Act through contributions to a multiemployer fund, plan, or program?You may satisfy your obligations under the Emergency Family and Medical Leave Expansion Act by making contributions to a multiemployer fund, plan, or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the amount of paid family and medical leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.
  36. I am an employer that is part of a multiemployer collective bargaining agreement, may I satisfy my obligations under the Emergency Paid Sick Leave Act through contributions to a multiemployer fund, plan, or program?You may satisfy your obligations under the Emergency Paid Sick Leave Act by making contributions to a multiemployer fund, plan, or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the hours of paid sick leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.
  37. Are contributions to a multiemployer fund, plan, or other program the only way an employer that is part of a multiemployer collective bargaining agreement may comply with the paid leave requirements of the FFCRA?No. Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provide that, consistent with its bargaining obligations and collective bargaining agreement, an employer may satisfy its legal obligations under both Acts by making appropriate contributions to such a fund, plan, or other program based on the paid leave owed to each employee. However, the employer may satisfy its obligations under both Acts by other means, provided they are consistent with its bargaining obligations and collective bargaining agreement.

With that, the DOL issued two additional Q&A’s re how coronavirus relates to the FLSA (Fair Labor Standards Act) and the FMLA(Family and Medical Leave Act).

 

 

DOL issues enforcement guidance urging staff to recognize a “temporary non-enforcement period” for “reasonable” and “good faith” compliance

The DOL issued Field Assistance Bulletin no. 2020-1 urging its staff to recognize a “temporary non-enforcement period” for employers who are in “reasonable” and “good faith” compliance. To qualify for the benefit of this “non-enforcement period,” the employer must establish all of the following:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.  As explained in a Joint Statement by the Department, the Treasury Department and the Internal Revenue Service (IRS) issued on March 20, 2020, [2]  this program is designed to ensure that all covered employers have access to sufficient resources to pay required sick leave and family leave wages.[3]

  2. The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”).

  3. The Department receives a written commitment from the employer to comply with the Act in the future.

In other words, an employer who has taken no steps to try to come into compliance with the FFCRA (Families First Coronavirus Response Act) will likely not qualify for the benefits of this “temporary non-enforcement period,” and an employer that has at least tried may qualify for some mitigation but will nonetheless be required to come into compliance, though it may have some time to remedy the violation “as soon as practicable” and may have the benefit of not having the DOL taking further enforcement actions against it in the meantime.

EEOC publishes YouTube webinar on ADA, Rehabilitation Act and coronavirus

The EEOC published a short 42-minute YouTube video on the ADA, Rehabilitation Act and coronavirus.  The webinar fleshes out the EEOC’s recent coronavirus guidance and identifies certain questions that it believes it is currently unable to answer, including the following:

  • Whether coronavirus (COVID-19) is or could be a disability protected by the ADA?

Questions addressed include, in addition to those raised in the above guidance:

  • Whether an employer can ask an employee if his/her family has tested positive for coronavirus? Here, the EEOC believes that question is too narrow, because it is limited to questions about the employee’s family and as such the EEOC says it believes the question might implicate the Genetic Information Nondiscrimination Act (GINA); therefore, the EEOC urges employers instead to ask if the employee has had any such contact with anyone whom he/she knows to have tested positive.
  • Whether an employer, when disclosing that someone has tested positive, can disclose that person’s identity? The EEOC repeats its position in its above guidance’s instruction that employers, upon learning of a positive coronavirus test result, have some ability to disclose the same within a true need-to-know basis, and that it may be able to disclose to co-workers that someone has tested positive, but it repeats the employer should not generally report the person’s identity. That is true, the EEOC says, even where coworkers may be guessing or attempting to guess at the person’s identity. It gives as an example that the company may report that a person is teleworking without telling his coworker’s that the reason for his absence from the workplace is a positive test result. Likewise the EEOC addresses the issue where an employer may be faced with a concern that disclosing something as general as “someone at this location” or “someone on the 4th floor” has tested positive, is not sufficient information for concerned coworkers; here too, the EEOC restates its position that, even in that situation, the employer should not disclose the person’s identity. 
  • Whether allowing workers to telework during the coronavirus crisis may be later used by a disabled worker requesting the right to telework after the coronavirus crisis? The EEOC answers flatly, no, the fact that an employer allows teleworking during this coronavirus crisis cannot be used as evidence that teleworking might be a reasonable accommodation outside the coronavirus crisis. However in an unhelpful muddling of its answer, the EEOC added that it “could” be somehow relevant to showing that telework was in general feasible at least in some circumstances, theoretically.

The EEOC says that, while teleworking, HR professionals and others with a need-to-know medical information must store information, even at home, in a confidential manner, including not leaving notes where they can be seen. In a frankly absurd moment, the EEOC actually recommends HR professionals consider writing their notes while teleworking “in code.”

The EEOC noted that, during the coronavirus crisis, employers may be having difficulty obtaining doctor’s notes related to ADA accommodation requests and suggests that employers consider whether other documentation might suffice — arguably at least until a doctor’s note becomes available — such as a “health insurance record” or “a prescription.”

While not particularly robust or helpful on some of those difficult questions — and adding to the confusion on some questions — the webinar is nonetheless recommended for HR professionals to review as soon as possible.

Turn on your radios this Saturday 850 KOA, or stream, 4:05-4:30 PM

I’ll be on 850 KOA talking about the employment-law aspects of coronavirus with Mike Rice this Saturday from 4:05 PM to probably just before 4:30 PM MT. Tune in or stream.

CDLE issues revised Wage Protection Act Rules

On March 16, 2020, the Colorado Department of Labor and Employment (CDLE) issued amendments, effective that same day, to its prior Wage Protection Act Rules. The amendments added language that articulated the CDLE’s opinion that Colorado state law on the Joint Employer doctrine is and, in its opinion, has always been contrary to federal law.

COMPS Order 36 takes effect with some changes

Colorado Overtime and Minimum Pay Standards (COMPS) Order 36 took effect March 16, 2020 with some revisions and additional commentary by the Colorado Department of Labor and Employment.

First, in another Statement of Basis, Purpose, Specific Statutory Authority, and Findings for Adoption as Temporary or Emergency Rules, the CDLE issued a multi-page detailed explanation of its opinion that Colorado state wage-hour law on the Joint Employer doctrine is and, in its further opinion, has been contrary to and stricter than federal law. The CDLE announced there it will soon commence regulatory rulemaking on the Joint Employer doctrine to further solidify its reading of Colorado state wage-hour law.

The Statement also clarified what information needs to be included in paycheck statement eliminating prior proposed requirements that CDLE concedes “make() no sense.”

In an email to stakeholders distributing the revisions on March 16, 2020, the CDLE also advised of grace periods it will permit in light of the on-going coronavirus events, as follows:

(B)       Division Operations, and Compliance Grace Periods

            As of now, the Division remains fully operational. Based in part on potential delays to employer internal operations that have been called to the Division’s attention, the Division has adopted the following policies to grant what leniency it can, within the confines of existing law, for the coming weeks.

(1)   COMPS-required paperwork (posters, handbook inserts, acknowledgements, etc.) – compliance by 4/16/20 will be sufficient. To the extent that COMPS requires new paperwork from employers (new posters, handbook inserts, acknowledgement forms, etc.), the Division will deem compliance within the first month of COMPS – i.e., by April 16th – to be sufficient to qualify as compliant.

(2)   No Division-initiated investigations of new COMPS rules until 4/16/20. While the Division by statute must investigate any claims filed with us, the Division’s “Direct Investigations” team launches its own investigations, based on tips, leads, and known problem sectors. For the first month of COMPS being in effect (i.e., until April 16th), Direct Investigations will not launch new investigations based on violations of new COMPS rules.

(3)   Deeming violations of new COMPS provisions rules non-willful if remedied by 4/16/20. As noted above, the Division cannot by statute reject a claim filed shortly after COMPS takes effect. But to the extent that a violation committed within the first month of COMPS is solely of a new obligation under COMPS, the Division will deem the violation not “willful” if the employer remedies it within the first month of COMPS – i.e., by April 16th.

(4)   Starting tomorrow, March 17th, no new “notices of claim” will be sent to employers until April 1st. This is for all wage claims, not just those related to COMPS. Because some employers may be currently struggling to keep up with mail receipt, the Division will postpone mailing any new “notice of claim” – the mailing that tells an employer that a claim has been filed against it – because by statute, a notice of claim starts a 14-day clock for the employer to avoid penalties by paying any wages due. A longer extension would risk backlogging claims, but the Division aims for this period of just over two weeks to postpone employers’ receipt of mail that starts a statutory deadline.

Common questions re WARN versus coronavirus

Thinking about layoffs, furloughs or reductions of hours? Wondering about the WARN Act’s 60-day notice requirements? Bloomberg BNA published a handy article discussing some of the common questions about the WARN Act and coronavirus layoffs, furloughs and hour-reductions.

Source: The WARN Act: Top Coronavirus Questions Answered by Lawyers
— Read on www.bloomberglaw.com/exp/eyJjdHh0IjoiRExOVyIsImlkIjoiMDAwMDAxNzEtMTI4NS1kMDlhLWEzNzMtOWE5N2ZiMTYwMDAwIiwic2lnIjoiODFXQlVIQjIzU3pRUnB1TzJaTHlLL3BXU0NJPSIsInRpbWUiOiIxNTg1MTYyNTE0IiwidXVpZCI6IkVuY0FVQkNZUnhxcjlOQ3AreU4xVHc9PWcwRnZ1MHVUMUNNQnQzbnEzMXcxRkE9PSIsInYiOiIxIn0=

DOL issues preliminary Q&A re new coronavirus sick and FMLA leave rights

The DOL has issued a preliminary Q&A on the newly mandated coronavirus-related sick- and FMLA-leave rights. The Q&A answers some but not all of the questions previously raised to DOL. Highlights of the Q&A include the following:

  • The effective date of this new Act will now be April 1, 2020 (moved up from the initial tentative date of no later than April 2, 2020).
  • How employees should be counted for the purpose of determining if a company falls into the exemption for large companies (employing 500 or more), including how to count for related companies (including affiliates) and possible joint employer relationships.
  • How the new coronavirus sick leave hours should be counted for part-time workers.
  • How much sick leave should be paid for workers who would, otherwise, have worked overtime.
  • How employees who qualify for both the new coronavirus sick-leave and the new coronavirus paid FMLA-leave should be paid.
  • The DOL’s interpretation that paid leave provided prior to the new Act’s effective date (now, April 1, 2020) does not count towards these new requirements.
  • How to count the 30-day eligibility period for new hires re the new coronavirus FMLA-leave law.

The DOL advises that regulations will be forthcoming as may be additional guidance.

For brevity’s sake, the DOL’s analysis of these, and the other topics it addresses, are not restated here. Rather employers are encouraged to immediately review the DOL’s Q&A in full.

BREAKING NEWS: Gov. Polis orders in-person Colorado workforce reduction of 50% – Denver Business Journal

The Governor’s order is not yet available, but the Denver Business Journal is reporting that “The order does not apply to critical, 24-hour businesses like health care, manufacturing, agriculture and public services such as trash collection and mail delivery.” In his press conference Governor Polis stated verbally the order will take effect Tuesday March 24, 2020 and that “If you can ensure no employees are closer from (sic, than) six feet from one another during the work day, you can continue.” The order will expire April 10, 2020 11:59 PM.

Source: www.bizjournals.com/

UPDATE 3-23-2020: The order is now available, as is a FAQ from the Governor’s office.

The order’s operative language, including an explanation of the possible exemption for employers that can certify 6′-distancing is, as follows:

The executive order directs all employers to implement tele-work options to the greatest extent possible. If tele-work is not practical or possible, employers are encouraged to stagger work schedules to reduce the proximity of employees during work hours and to keep employees on payroll. This Executive Order does not apply to any employer that can certify that employees are no closer than six feet from one another during any part of their work hours.

The FAQ provides further explanation as to the industries that are exempt from the order. Exempt industries include defense contractors, oil and gas production companies, construction companies, and a variety of other industries such as groceries, pharmacies, healthcare, law enforcement, etc. The FAQ also suggests that “Planes and any other form of travel should only be used for essential purposes.

IRS begins clarifying how employers can recoup coronavirus-related leave expenditures

As previously posted, Congress enacted this week two new forms of coronavirus-related leave: sick leave and coronavirus-FMLA leave. Today, 3-20-2020, the IRS issued a memo beginning to explain how employers will be able to recoup expenses for the same and advising that further explanation will be forthcoming next week:

When employers pay their employees, they are required to withhold from their employees’ paychecks federal income taxes and the employees’ share of Social Security and Medicare taxes.  The employers then are required to deposit these federal taxes, along with their share of Social Security and Medicare taxes, with the IRS and file quarterly payroll tax returns (Form 941 series) with the IRS.

Under guidance that will be released next week, eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS.

The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.

If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. The details of this new, expedited procedure will be announced next week. 

Questions arise for regulatory clarification re coronavirus leave

As noted, Congress enacted two new forms of coronavirus leave this week: sick and FMLA-type leave. Bloomberg BNA reports that the DOL held a townhall today 3-20-2020 to invite suggestions for regulatory clarification and that questions raised in that townhall included:

  • How the exemption for small employers (less than 50 workers) will be interpreted? How will the 50-worker threshold be counted? Will there be any other requirements or will all employers with fewer than 50 workers be exempted?
  • How the exemption for large employers (more than 50 workers) be interpreted? How will the 500 workers be counted?
  • How will existing paid and sick leave interface with these two new forms of leave?
  • Will amounts paid to furloughed workers as a result of the coronavirus events count towards these two new forms of leave?
  • How will the new coronavirus-FMLA leave interact with regular FMLA leave for individuals who experience both coronavirus-related and un-related medical conditions?
  • How will the Treasury Department clarify the rules for how and when employers may assert the tax reimbursement credit to offset payments for these two new forms of leave?

As previously posted, the DOL is expected to issue its regulations — without prior notice or opportunity to comment — no later than the Act’s effective date, and as early as next week.

DOL relaxes normal I-9 processes for businesses affected by coronavirus-absences/teleworking

Normally an employer must review actual physical documents to complete a new hire’s I-9. SHRM has published this article explaining the DOL’s announcement that, for businesses where that is impossible because workers are absent and/or teleworking, that requirement will be relaxed to permit remote review of such documents, retention of same, then review physically when possible. The step-by-step instructions from the government for doing this “COVID-19” process can be found here.

Stay-at-home orders and Essential Industry employers

The Cybersecurity and Infrastructure Security Agency (CISA) of the U.S. Department of Homeland Security has issued a memo identifying 16 industries as “essential critical infrasture.”

  • Chemical
  • Communications
  • Commercial facilities
  • Critical manufacturing
  • Dams
  • Defense industrial base
  • Emergency services
  • Energy
  • Financial
  • Food & agriculture
  • Government facilities
  • Healthcare & public health
  • Information technology
  • Nuclear reactors, materials & waste
  • Water
  • Transportations systems

CISA’s memo details and explains each such industry for the purpose of suggesting a list of employers that should be exempted from state and local stay-at-home orders during the coronavirus.

Please note that the memo states its list is advisory in nature and not controlling.

Therefore, any actual stay-at-home orders will need to be analyzed carefully by an employer within one of the 16 essential industries, but the memo will hopefully provide a helpful document to assist state and local governments in clarifying any such orders.

 

Reminder: DOL Fact Sheet #70 re furloughs

Employers who are considering furloughs are reminded to consider DOL Fact Sheet #70 regarding federal wage-hour issues, in addition to related state wage-hour issues, such as under new COMPS Order 36. Of course, wage-hour issues are only some of the issues to be considered. Additional issues include possible WARN Act notices and benefits-related questions. Any employer considering possible furloughs, layoffs or other job reductions in response to the current coronavirus should immediately consult with their employment law counsel.

BREAKING NEWS: Congress passes mandatory sick leave and paid FMLA leave re coronavirus

Late March 18, 2020, Congress passed then the President signed into law the Families First Coronavirus Response Act, HR 6201.

  • The Act will take effect “not later than 15 days” after its enactment March 18, 2020, in other words, absent further development, April 2, 2020. (UPDATE: The effective date has been set for April 1, 2020.) It will sunset December 31, 2020.
  • The Act requires two types of leave, both include paid leave components.
    • Both types of leave apply to employers with fewer than 500 employees.
    • Employers of fewer than 50 employees will theoretically be able to seek exemption from the leave requirements if they would “jeopardize the viability of the business as a going concern.” The Act does not explain further. Rather it delegates to the DOL authority to develop regulations and processes to flesh out this possible exemption.
    • Special rules may also permit exemption of “certain health care providers and emergency responders,” again without explanation in the Act, as to be fleshed out by DOL regulations.
  • First, the Act provides for up to 80 hours of sick leave, in the event (1) the employee is subjected to a federal, state or local quarantine/isolation order re coronavirus, (2) the employee has been advised by a healthcare provider to self-quarantine re coronavirus, (3) the employee’s own coronavirus experience, or the employee is (4) caring for an individual subject to a quarantine/isolation order, (5) caring for a child whose school or daycare is closed, or (6) similar conditions as specified by government officials.
    • Sick leave for reasons 1-3 (generally the employee’s own condition) is capped at $511 per day.
    • Sick leave for reasons 4-6 is capped at $200 per day.
    • This sick leave will be available to all employees. Unlike the FMLA leave below, it does not appear to require a 30-day period of employment for eligibility.
  • Second, the Act amends the FMLA to provide for 12 weeks of leave when an employee is unable to work (or telework) because the employee must care for a child under the age of 18 whose daycare, elementary or high school has been closed due to coronavirus.
    • The first 10 days are unpaid. Employees can opt (but not be required) to substitute other paid leave.
    • The remaining 10 weeks of FMLA is paid at 2/3rds of the employee’s regular pay up to $200 per day and $10,000 total aggregate.
    • This coronavirus-specific FMLA leave will be available to employees who have been employed for at least 30 days.
    • The Act modifies the FMLA’s job-restoration requirements (in ways arguably not yet fully clear and hopefully to be determined by DOL regulation), recognizing that following the coronavirus crisis many positions will no longer exist.
    • Please note the coverage (fewer than 500 employees) and eligibility (30-days employment) requirements. This will mean that many (many) more employers and employees will be covered by coronavirus-FMLA than would otherwise be covered by the FMLA in general.
  • The Act (again without sufficient detail to be fully clear) provides for 100% tax credits to permit employers to offset the costs of providing such leave (by offsets against Social Security taxes).
  • The DOL is required to publish a poster within 7 days, summarizing the Act.

UPDATE: The DOL has begun rulemaking to develop regulations, which it hopes to deliver no later than the Act’s effective date, if not sooner. The DOL will bypass the normal process of publishing proposed rules first by invoking governmental-agency emergency authority to publish immediately effective final rules and invite comment on the same thereafter for possible later revisions.

 

EEOC issues guidance re Pandemic Preparedness in the Workplace

The EEOC issued a guidance entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. While the guidance does not answer some of the more difficult questions posed in the current coronavirus crisis, it does provide guidance on at least some questions employers are facing and are likely to face, including the following:

  • Before an influenza pandemic occurs, may an ADA-covered employer ask an employee to disclose if he or she has a compromised immune system or chronic health condition that the CDC says could make him or her more susceptible to complications of influenza?

No. …

  • Are there ADA-compliant ways for employers to identify which employees are more likely to be unavailable for work in the event of a pandemic?

Yes. …

Below is a sample ADA-compliant survey that can be given to employees to anticipate absenteeism.

ADA-COMPLIANT PRE-PANDEMIC EMPLOYEE SURVEY

Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

    • If schools or day-care centers were closed, you would need to care for a child;
    • If other services were unavailable, you would need to care for other dependents;
    • If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;
    • If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: YES______ , NO_______

  • May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?

Yes. …

  • During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?

ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. …

  • When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?

No. …

  • During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?

No. …

Employers should take the time to review the EEOC’s guidance and familiarize themselves with the nuances of the EEOC’s carefully worded answers. In the foregoing summaries, for brevity’s sake, only the EEOC’s conclusions (like “No”) are cited, but the EEOC’s answers, as indicated by the ellipses (“…”) proceed to qualify its answers.

Unemployment Insurance Worker FAQs | Colorado Department of Labor and Employment

Want a handy reference of Frequently Asked Questions (FAQs) related to Colorado’s Unemployment Insurance Program and availability of unemployment benefits as we go through this coronavirus experience? Check the state’s FAQ here: www.colorado.gov/pacific/cdle/unemployment-insurance-worker-faqs

BREAKING NEWS: Colorado Department of Labor and Employment issues paid-sick leave rule regarding coronavirus testing

According to a verbally issued executive order by Colorado Governor Polis, the Colorado Department of Labor and Employment has issued a rule (the “Colorado HELP” rule, aka the Colorado Health Emergency Leave with Pay rule) requiring certain employers to provide up to 4 days of paid leave for employees awaiting a coronavirus test result. Rule 3 reads, as follows:

Rule 3. Paid Sick Leave for Certain Employees.
3.1 Any employer engaged in the field of leisure and hospitality, food services, child care, education at all levels (including related services, including but not limited to cafeterias and transportation to, from, and on campuses), home health care (working with elderly, disabled, ill, or otherwise high-risk individuals), operating a nursing home, or operating a community living facility shall provide up to four days of paid sick leave for an employee (A) with flu-like symptoms and (B) who is being tested for COVID-19. The paid sick leave ends if an employee receives a negative COVID-19 test result.

3.2 These rules do not require an employer to offer additional days of paid sick leave if it already offers all employees an amount of paid leave sufficient to comply with Rules 3.1. However, an employee who already exhausted his or her paid leave allotted by the employer, but then has flulike symptoms and is being tested for COVID-19, is entitled to the additional paid sick days provided by Rule 3.1.
3.3 During paid sick leave covered by these rules, pay shall be provided (A) at the employee’s regular rate of pay (the COMPS Order Rule 1.8 definition of “regular rate of pay” is incorporated into this rule), including all forms of wages and compensation (but increased to the applicable minimum wage for an employee paid below the minimum wage due to a tip credit), and (B) for the employer’s regularly worked hours. To the extent that the employee’s rate of pay or hours worked had varied before the absence for illness, pay shall be in the amount of the employee’s average daily pay for the preceding month.
3.4 To the extent feasible, employees and employers should comply with the procedures of the federal Family Medical Leave Act (“FMLA”) to pursue and provide paid sick leave under these rules, except that (A) no employer may terminate an employee for inability to provide documentation during an illness covered by these rules, and (B) FMLA provisions do not narrow the rights and responsibilities provided by these rules.

Governor Polis has stated an intent to continue to explore ways the state can respond, including expanding availability of unemployment benefits and possibly freeing up state-government money to assist with other wage losses.

The CDLE’s page on its Colorado HELP rule, including the CDLE’s FAQ list, is available here, which includes the following Q&As:

What does the rule do?

  • Temporarily requires employers in certain industries (listed below) to provide a small amount of paid sick leave to employees with flu-like symptoms who are being tested for coronavirus COVID-19.

How much paid sick leave must be provided?

  • The employer must provide up to four days of paid sick leave to employees with flu-like symptoms who are being tested for coronavirus COVID-19. If the employee receives a negative test result, the paid leave ends.

Is this a requirement on top of sick leave an employer already provides?

  • No. If an employer already provides the paid leave necessary to meet these rules’ requirements, then the employer does not need to provide additional leave. However, if an employer does not already provide enough paid sick leave to comply with these rules, it will have to provide additional paid sick leave to meet the rules’ requirements. And if an employee already exhausted any paid leave allotted by the employer, but then has flu-like symptoms and is being tested for COVID-19, he or she is entitled to the additional paid sick days these rules provide.

Which employees and employers are covered by these sick leave rules?

  • Employers and employees in one of the following industries or jobs:
    • Leisure and Hospitality
    • Food Services
    • Child care
    • Education, including transportation, food service, and related work at educational establishments
    • Home health, if working with elderly, disabled, ill, or otherwise high-risk individuals
    • Nursing homes
    • Community living facilities
  • Workers are covered regardless of pay rate or method (hourly, weekly, piece rate, etc.); the daily pay during leave is either their established daily rate or, if their pay fluctuates, their average daily pay for the past month.

How long will the rule stay in effect?

  • The rules take effect March 11, 2020, for 30 days, or longer if the state of emergency declared by the Governor continues.

Why are these rules being created?

  • With the continuing spread of coronavirus COVID-19, coming to work while ill poses a serious threat to the health and safety of co-workers, others at the business, and the public generally. These rules will temporarily entitle certain employees to paid sick days in order to limit the spread of this disease.

Will additional funds be available for workers who need to be out of work longer than four days?

  • The current emergency rules only speak to paid leave for the four-day period required for testing, because that is what CDLE could do immediately. The Governor has asked CDLE to identify other potential supports and wage replacement, such as access to unemployment insurance. These options are under review to determine rulemaking authority, eligibility, etc.