March 30, 2020
Much has happened since the time of our last update (see attached) on COVID-19 and related employment law issues on March 19, 2020. Congress has passed another coronavirus related law. The United States Department of Labor (DOL) has provided some helpful guidance and answered a number of questions about the recent expansion of the Family and Medical Leave Act (FMLA) and about the new paid sick leave law, see: DOL FFCRA Q&A. This Q&A is evolving, and DOL changes and updates it regularly. And Utah state and local officials are giving directives too.
Here below are a baker’s dozen quick summaries and links about important things employers should know and consider about COVID-19 and HR law (prepared by Paul Smith, Mark Tolman, and Mike O’Brien of the Jones Waldo Employment Law Practice Group).
1. PAID LEAVE UNDER THE EMERGENCY PAID SICK LEAVE ACT (EPSLA): Employees of covered employers (private employers below 500 employees and certain public employers) are eligible for up to two weeks (80 hours) of paid sick leave for certain COVID-19 related reasons. If leave is because he/she is quarantined (by government order or a health care provider), and/or experiencing COVID-19 symptoms and seeking medical diagnosis, the employee gets his/her regular rate of pay, capped at $511/day and $5,110/aggregate (2-week period). If the employee needs leave to care for someone subject to a quarantine/isolation directive, or to care for a minor child whose school or child care provider is closed/unavailable for COVID-19 reasons, the employee gets 2/3 the regular rate of pay, capped at $200/day and $2,000/aggregate (2-week period). Here is a link to the DOL’s webpage on this topic: DOL FFCRA employee paid leave rights summary.
2. EMERGENCY FMLA EXPANSION ACT: Under the FMLA Expansion Act, employees get up to 10 weeks (plus EPSLA paid sick leave) of paid FMLA leave if the employee is unable to work because he/she needs to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. Employees taking such expanded family medical leave are entitled to 2/3 their regular rate of pay, capped at $200/day and $12,000/aggregate (12-week period). Here is a link to the DOL’s webpage on this topic: DOL FFCRA employee paid leave rights summary.
3. TAX CREDITS FOR PAYMENTS MADE UNDER THE FAMILY FIRST CORONAVIRUS RELIEF ACT (FFCRA): Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. While employers are free to pay employees in excess of the per diem and aggregate caps specified in the FFCRA, employers cannot claim, and will not receive tax credit for, any amounts paid in excess of FFCRA’s statutory limits. Here are links to guidance from the DOL: DOL FFCRA employee paid leave rights summary; DOL FFCRA Q&A.
4. NEW DOL NOTICE MUST BE POSTED BY COVERED EMPLOYERS: The FFCRA requires all covered employers to post in conspicuous places a notice describing the conditions under which such paid leave is available and the amount of available paid leave. Here is a link to the poster: FFCRA poster. Here is a link to a DOL Q&A explaining how to post the notice in various ways: FFCRA poster Q&A. Employers should post the posters no later than April 1, 2020.
5. PAID LEAVE MAY BE TAKEN INTERMITTENTLY IN SOME SITUATIONS: Questions 20-22 from the DOL FAQs make clear that intermittent leave is available in some situations, but only if the employer agrees. The DOL explains that intermittent paid sick leave and intermittent paid expansion act leave is available to care for a child as the result of a school closure, “but only with your employer’s permission.”For teleworking employees, intermittent paid sick leave is also available for all other qualifying paid sick leave reasons, e.g., if the employee is subject to a quarantine/isolation order, is experiencing symptoms of COVID-19, or is caring for someone in that situation. The DOL provides this helpful example of how to apply such intermittent leave for a teleworking employee: “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.” However, intermittent paid sick leave is not available to an employee working at the employer’s worksite (i.e., for non-teleworkers) if the employee is subject to a quarantine or isolation order, is experiencing symptoms of COVID-19, or is caring for someone in that situation. This makes good sense because such intermittent leave for a non-teleworking employee could lead to the spread of COVID-19. For more information, see: DOL FFCRA employee paid leave rights summary.
6. DOL GUIDANCE RELATED TO WORKSITE CLOSURES AND FURLOUGHS: The DOL has provided guidance regarding worksite closures and furloughs and their impact on FFCRA leave. If an employer closes a worksite—before or after FFCRA’s effective date (April 1, 2020)—employees are not entitled to paid FFCRA leave and such employees should look to unemployment insurance benefits. DOL says this is true even if the closure is temporary. If an employer closes a worksite while an employee is on FFCRA leave, the employer pays for leave used before the closure, but as of the date of the closure, the employee is not entitled to paid leave under FFCRA. Furloughs are more complicated. The DOL says a furloughed employee does not get FFCRA paid leave. It is unclear if that conclusion applies to a furloughed employee who then contracts COVID-19 and is staying home by the directive. DOL does not clearly address this point. In this situation, employers must choose to grant paid leave or deny it. Both are reasonable readings of the FFCRA, but both carry risks. If an employer grants paid leave in such a situation, DOL cannot penalize it for failure to provide leave, but the employer might not get tax credits. If the employer denies paid leave, and DOL or a court determines this is not the proper reading of FFCRA, a DOL investigation may loom over the employer’s head. Hopefully, the DOL will clarify this specific issue. Here is a link to the DOL’s webpage on this topic: DOL FFCRA employee paid leave rights summary.
7. GENERAL GOVERNMENT STAY-AT-HOME DIRECTIVES DO NOT TRIGGER PAID LEAVE: A general government directive to stay home—e.g., the State of Utah’s Stay Safe, Stay Home Directive, and Stay-at-Home Orders from Summit and Salt Lake Counties and Salt Lake City—do not trigger paid leave under the FFCRA. Although paid leave under the FFCRA is available to an employee who is subject to a governmental “quarantine or isolation” order, or who is caring for someone who is, such orders must be made to an individual—a generalized state-wide, county-wide, or city-wide closure order will not suffice. Question 23 of the DOL guidance FAQs make clear that paid leave is not available to an employee who is sent home from work “pursuant to a Federal, State, or local directive.” DOL FFCRA employee paid leave rights summary.
8. DOCUMENTATION: Questions 15 and 16 from the DOL guidance FAQs for the new COVID-19 FMLA and paid sick leave laws include some interesting information on gathering documentation. In essence, they say document coronavirus-related FMLA leave as you would other FMLA leave. Moreover, DOL says for the new paid sick leave, you must require your employee to provide you with appropriate documentation in support of the reason for the leave, including the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested. DOL says if you want to seek applicable tax credits, documentation must support the application. See: DOL FFCRA employee paid leave rights summary.
9. THIRTY DAYS OF AMNESTY: The DOL recognizes that well-meaning employers will make some mistakes executing on the new paid leave laws. In its recently published “Employer Paid Leave Requirements” summary, the DOL states that there will be a 30-day amnesty period starting April 1, 2020 (the effective date), “so long as the employer has acted reasonably and in good faith to comply with the Act.” As a result, if an employer violates these laws during the first 30 days, an employer may avoid a DOL enforcement action by showing its violation resulted from a “good faith” error. Such good faith will exist “when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.” See: DOL FFCRA employee paid leave rights summary.
10. CARES ACT PROVIDES STIMULUS, INCLUDING PAYROLL LOANS: The recently passed Coronavirus Aid, Relief, and Economic Security (CARES) Act is intended to provide much need emergency funding, and economic stimulus to individuals and businesses. The more than $2 trillion rescue financial package provides assistance to many stakeholders seriously impacted by COVID-19, including businesses, healthcare providers, and most Americans. While the specific details are forthcoming, some highlights include: (i) special rules for use of retirement funds; (ii) $500 billion for loans and assistance to businesses, states, and municipalities; (iii) $349 billion in low-interest small business loans that may be used to cover payroll obligations and may be partially forgiven; (iv) delay of employer payroll tax payments; and (v) employee retention tax credits. Recipients of SBA-guaranteed loans under the Paycheck Protection Program could apply for loan forgiveness over eight weeks for eligible payroll costs and for mortgage interest, rent, and utility payments. Loan forgiveness would be reduced for businesses that lay-off employees or cut their pay. (This portion of our update was drafted by Jones Waldo tax attorney Geoff Gunnerson. If you have questions about the CARES Act or how to obtain its benefits, Geoff would be happy to assist you. You may email Geoff at email@example.com. Watch for additional guidance on the CARES Act in subsequent updates.)
11. EEOC ISSUES/UPDATES COVID-19 GUIDANCE: The Equal Employment Opportunity Commission (EEOC) also is issuing guidance to employers on COVID-19 issues. Some of this EEOC guidance is new, see EEOC COVID-19 Q & A and What you should know about the ADA, the rehabilitation act, and COVID-19. Some of it is pandemic-related guidance issued several years ago but updated and still relevant to this pandemic, see: Pandemic preparedness in the workplace and the ADA. All three of these EEOC guidance documents are helpful as employers deal with COVID-19 issues in the workplace.
12. UTAH UNEMPLOYMENT COMPENSATION GUIDANCE: The Utah Department of Workforce Services (“Workforce Services”) has issued guidance for both employers and employees on when benefits are available for COVID-19 issues. Workforce Services says unemployment insurance benefits may be available to employees unable to work for a variety of reasons related to COVID-19, including layoff, furlough, leave and other reasons. More information is available here Utah Department of Workforce Services COVID-19 resource page, and here: Utah Department of Workforce Services COVID-19 and unemployment FAQs.
13. UTAH’S “STAY SAFE, STAY HOME” DIRECTIVE: On March 27, 2020, Utah Governor Gary Herbert issued a “Stay Safe, Stay Home” Directive. He directs employers to take the following steps: (1) consider how to decrease the spread of COVID-19 in the workplace; (2) encourage/enable employees to work from home as much as possible (e.g., utilizing video conferencing and virtual meeting services); (3) implement policies that make the workplace as safe as possible for employees who can’t work from home (e.g., requiring employees with COVID-19-like symptoms to remain at home, enhancing social distancing, providing hand soap and sanitizing wipes, staggering shifts); (3) be prepared to adapt to changing situations; and (4) accommodate high-risk individuals. The Directive, as applied to businesses takes effect at 12:01 a.m. on March 30, 2020. Here is a link to the Governor’s “Stay Safe, Stay Home” Directive: Governor’s Directive.
After the Governor issued his Directive, Salt Lake City Mayor Erin Mendenhall issued Proclamation No. 5, which makes violation of the Governor’s Directive subject to legal penalty within the Salt Lake City limits. Here is link to Proclamation No.5, see: SLC Emergency Proclamation. March 29, Salt Lake County Mayor Jennifer Wilson issued a Public Health Order, which, like the City’s Proclamation No.5, provides legal penalties for violation of the Governor’s Directive. The County’s Public Health Order also prohibits door-to-door solicitation (regardless of purpose, except home delivery services) and closes certain facilities “based on their inability to observe social distancing”: places of public amusement and activity (e.g., amusement parks, water parks, swimming pools, zoos, aquariums, playgrounds, movie theaters, clubs, gyms); and salons and spas (e.g., hair salons, barbershops, nail salons, tattoo parlors, massage establishments). Here is a link to the County’s Public Health Order: Salt Lake County Public Health Order
No doubt, these are difficult and interesting times. There is a lot going on here, and the relevant laws and directives are changing and evolving even as you read this summary. To navigate these times, stay tuned for more updates, read the new guidance/directives, and get help from your employment lawyers. And please also STAY WELL!
Written by: Employment Attorneys-
Michael O’Brien firstname.lastname@example.org
Mark Tolman email@example.com
Marci Rechtenbach firstname.lastname@example.org
Paul Smith email@example.com
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