DOL hits critical issues in Coronavirus Leave Law Questions - California Answers

The U.S. Department of Labor on Saturday further fleshed out its rules governing the new emergency sick leave law enacted in response to the novel coronavirus pandemic, tackling nearly two dozen “critical issues” that hadn’t yet been addressed.

The agency’s latest guidance took on scenarios that it hadn’t yet addressed in previous iterations of a Q&A document it first issued on March 24 and has updated several times after the passage of the Families First Coronavirus Response Act. The law, which President Donald Trump signed on March 18, takes effect April 1 and will remain in place until the end of the year.

Congress passed the FFCRA as part of its broader effort to help millions of Americans cope with the economic storm wrought by the virus, requiring businesses with fewer than 500 workers to provide emergency short- and long-term paid leave.

The DOL has already gone through several rounds of guidance since the FFCRA was signed into law. In its initial batch of guidance issued March 24, the DOL touched on issues like which categories of workers could be counted toward the 500-worker threshold.

That was followed days later by another FFCRA-related guidance that included notices that employers must post laying out the triggers for paid sick and leave time, the amount of time workers can take off, and the amount they’ll be paid while off work. The agency also sent a memo to field staff that laid out a nonenforcement policy for employers that unwittingly break the law that will remain in place until April 17.

And on Friday, the DOL updated its Q&A document to address issues such as the applicability to the FFCRA of so-called intermittent leave, which is when workers take leave for short periods of time, as well as the law’s application to businesses that are forced to shutter amid the COVID-19 pandemic.

In its latest update on Saturday, the DOL again expanded its Q&A guidance from about three dozen entries to nearly 60, including a section that fleshes out the details of a carve-out in the law for certain employers with less than 50 workers.

While the law does not exclude those smaller employers outright, it directed the DOL to issue regulations exempting businesses that fall below the 50-employee threshold if making them pay leave would jeopardize their business.

By Vin GurrieriLaw360 (March 30, 2020, 6:13 PM EDT) — The U.S. Department of Labor on Saturday further fleshed out its rules governing the new emergency sick leave law enacted in response to the novel coronavirus pandemic, tackling nearly two dozen “critical issues” that hadn’t yet been addressed.

The agency’s latest guidance took on scenarios that it hadn’t yet addressed in previous iterations of a Q&A document it first issued on March 24 and has updated several times after the passage of the Families First Coronavirus Response Act. The law, which President Donald Trump signed on March 18, takes effect April 1 and will remain in place until the end of the year.

The U.S. Department of Labor has expanded its guidance on the Families First Coronavirus Response Act. The topics tackled by the DOL in Saturday’s updated guidance include the extent to which certain small businesses can be exempted from the FFCRA’s mandates and whether public sector workers can avail themselves of leave under the new law, among other things.

“The response to the guidance we’ve published so far has illustrated the critical need that workers and employers have for this important information,” said Cheryl Stanton, administrator of the DOL’s wage and hour division. “This round includes some of the most common questions we are receiving and will help ensure that the American workforce has all the tools and information needed in these very trying times.”

Congress passed the FFCRA as part of its broader effort to help millions of Americans cope with the economic storm wrought by the virus, requiring businesses with fewer than 500 workers to provide emergency short- and long-term paid leave.

The law provides workers with two weeks of time off at full pay if they can’t work for various reasons tied to COVID-19, including if they’ve been quarantined or have COVID-19 symptoms and are seeking a diagnosis. The law applies to part- and full-time workers, providing them as many hours off as they generally work in two weeks, up to 80 hours.

Employers must pay employees at their full wage if they are taking time off for themselves or two-thirds of their regular pay if they have to care for a family member, up to certain caps. The bill also amends the Family and Medical Leave Act to give workers long-term paid time off at partial pay if they can’t work because their child’s school has closed. Employers covered by the law can seek reimbursement of any qualifying wages they pay under the FFCRA through tax credits.

The DOL has already gone through several rounds of guidance since the FFCRA was signed into law. In its initial batch of guidance issued March 24, the DOL touched on issues like which categories of workers could be counted toward the 500-worker threshold.

That was followed days later by another FFCRA-related guidance that included notices that employers must post laying out the triggers for paid sick and leave time, the number of time workers can take off, and the amount they’ll be paid while off work. The agency also sent a memo to field staff that laid out a nonenforcement policy for employers that unwittingly break the law that will remain in place until April 17.

And on Friday, the DOL updated its Q&A document to address issues such as the applicability to the FFCRA of so-called intermittent leave, which is when workers take leave for short periods of time, as well as the law’s application to businesses that are forced to shutter amid the COVID-19 pandemic.

In its latest update on Saturday, the DOL again expanded its Q&A guidance from about three dozen entries to nearly 60, including a section that fleshes out the details of a carve-out in the law for certain employers with less than 50 workers.

While the law does not exclude those smaller employers outright, it directed the DOL to issue regulations exempting businesses that fall below the 50-employee threshold if making them pay leave would jeopardize their business.

In Saturday’s guidance, the Labor Department laid out the parameters for businesses to claim that exemption so as to not provide sick leave or expanded medical leave to workers whose kids’ schools or childcare providers are closed because of COVID-19.

To do so, the DOL said that an “authorized officer of the business” must determine that the leave request falls into any one of three buckets: that the paid leave provision would cause the business’ expenses and financial obligations to exceed its revenue and cause it to “cease operating at a minimal capacity”; that the absence of any workers who request FFCRA leave will “entail a substantial risk” to the company’s financial well-being or its ability to operate because they possess “specialized skills, knowledge of the business, or responsibilities”; or that there aren’t enough qualified workers available to do the work the employees requesting FFCRA leave perform if that work is necessary for the business to run at “minimal capacity.”

Elsewhere in the DOL’s newly updated guidance, it clarified that paid sick leave under the FFCRA doesn’t affect an employee’s ability to take any other forms of paid leave they have accrued, such as time mandated by city or state laws or time offered as part of company policy.

Some of the California related questions our firm has been tackling:

Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?

Yes, you are permitted to ask them to seek medical attention and get tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace. The Equal Employment Opportunity Commission (EEOC) confirmed that advising workers to go home is permissible and not considered disability-related if the symptoms present are akin to the COVID-19 coronavirus or the flu.

Can I take an employee’s temperature at work to determine whether they might be infected?

Yes. The EEOC confirmed that measuring employees’ body temperatures is permissible given the current circumstances. While the Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA, the federal agency recognizes the need for this action now because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions. 

However, as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.

Note: If your company does business in the State of California (e.g., if you have one or more locations, employees, customers, suppliers, etc. in the state), and your business is subject to the California Consumer Privacy Act (“CCPA”), then you have to provide employees a CCPA-compliant notice prior to or at the same time as your collection of this information.

What precautions are needed for individuals who are taking the temperatures of employees, applicants or customers?

To protect the individual who is taking the temperature, you must first conduct an evaluation of reasonably anticipated hazards and assess the risk to which the individual may be exposed. The safest thing to do would be to assume the testers are going to potentially be exposed to someone who is infected who may cough or sneeze during their interaction. Based on that anticipated exposure, you must then determine what mitigation efforts can be taken to protect the employee by eliminating or minimizing the hazard, including personal protective equipment (PPE). Different types of devices can take a temperature without exposure to bodily fluids. Further, the tester could have a face shield in case someone sneezes or coughs. Further information can be found at OSHA’s website, examining the guidance it provides for healthcare employees (which includes recommendations on gowns, gloves, approved N95 respirators, and eye/face protection).

An employee of ours has tested positive for COVID-19. What should we do?

You should send home all employees who worked closely with that employee to ensure the infection does not spread. Before the infected employee departs, ask them to identify all individuals who worked in close proximity (within six feet) for a prolonged period of time (more than a few minutes) with them in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary. The CDC provides that the employees who worked closely with the infected worker “should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).”

How long should the employees who worked near the employee stay at home? Those employees should first consult and follow the advice of their healthcare providers or the public health department regarding the length of time to stay at home. If those resources are not available, the employee should at least remain at home for three days without a fever (achieved without medication) if they don’t develop any other symptoms. If they develop symptoms, they should remain home for at least seven days from the initial onset of the symptoms, and three days without a fever (achieved without medication).

If you have any questions about the Families First Coronavirus Response Act and California leave, please contact Richard E. Quintilone II Esq. req@quintlaw.com or 949.458.9675.