17

January, 2021

Paternalism in the Age of COVID-19 Can Trip Up Well-Meaning Employers

By Tracey I. Levy

Employers are authorized, and to some degree required, to intrude into their employees’ personal lives and health issues as a screening tool to prevent the spread of COVID-19 in the workplace.  It is critical to remember, however, that the inquiries employers may currently be posing with regard to employees’ recent travel activity, physical health, and contacts with others represent a very limited exception to the general principle that employees in the U.S. are legally entitled to keep their health information private from their employers and to maintain autonomy over their engagement in lawful activities on their personal time.  Well-meaning employers, concerned for their employees’ welfare, may unwittingly run afoul of federal, state or local laws if they probe unnecessarily into the activities of their employees or place restrictions on where and when employees can work.

 

Reporting Positive COVID-19 Results

One issue that may trip up employers is requiring remote workers to report if they have tested positive for COVID-19 or are experiencing any COVID-like symptoms.  These are precisely the inquiries that employers can pose when screening employees who are physically coming into the workplace and will thereby be in contact with other individuals.  But the same questions are not permissible with regard to remote workers.  Guidance from the Equal Employment Opportunity Commission (“EEOC”) and New York City make clear that an employee who is working remotely and has not had in-person contact with colleagues or customers has no obligation to notify the employer of a positive COVID-19 test result or if they are experiencing COVID-like symptoms.

 

Working While Under Quarantine

Employees in New York who are under a quarantine or isolation order are not eligible for New York State COVID-19 leave if they are still able to work remotely while under quarantine.  If an employee has been quarantined because the employee has personally contracted COVID-19, New York City has issued testing guidance that if the employee can work remotely from home and feels well enough to do so, the employee need not take time off.  The guidance does not authorize employers (no matter how well-meaning) to preclude an employee who is able to work remotely from doing so just because the employee is experiencing symptoms of COVID-19.

 

Higher-Risk Individuals in the Workplace

The EEOC and the New York City Commission on Human Rights have both issued guidance that policies intended to be benevolent, that prohibit older workers from returning to the workplace because their age places them at a higher health risk if they contract COVID-19, are legally impermissible.  The same is true, according to the EEOC guidance, for removing pregnant or disabled employees from the workplace during the pandemic.  Employers must consider remote work requests from pregnant and/or disabled employees as a reasonable accommodation, but if no such request has been made, then the employer cannot mandate a telework arrangement based solely on an employee’s pregnancy, nor can an employer impose such a mandate with regard to an individual with a disability other than in extremely narrow circumstances where the employee’s presence in the workplace is found to present a “significant risk of substantial harm” to the employee and no other accommodation would suffice.

 

Accommodating Older Individuals to Keep Them Safe

New York City employers also can create issues for themselves if they authorize employees to work from home based solely on their age, or provide greater pandemic protective measures in the workplace just for older employees.  Employees, of any age, with underlying health conditions, may be entitled to work remotely as a reasonable accommodation for a disability.  Where the employee is not asserting any risk factor other than age, the NYC Commission on Human Rights has taken the position that the employer must treat all employees the same regardless of age.  The employer is not legally required to accommodate such individuals with remote work or additional precautionary measures, but if it chooses to do so then the option must be made available in an age-neutral manner.

 

Getting the All Clear from the Doctor

Finally, employers that want to be sure an employee really is well enough to return to work after contracting COVID-19 should restrain their instinct to require medical documentation.  Per CDC guidance, employers should not require a COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work. The CDC states requiring a negative COVID-19 test result also is not an appropriate criterion for such employees to return to work, as many people test positive long after the infectious period has ended.

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30

December, 2020

Extension of FFCRA Credit Helps NYS Employers

By Tracey I. Levy

As a post-script to our last blog post, the latest federal COVID-19 relief package, which was signed into law on December 27, 2020, includes a short-term extension of the FFCRA tax credit that offers some additional financial relief for New York State employers.  As we previously discussed, the paid leave requirements of the FFCRA are set to expire December 31, 2020, and the new COVID-19 relief package allows those requirements to sunset.  However, those employers that voluntarily elect to continue to provide the paid leave that was available under the FFCRA, under that law’s eligibility requirements, can continue to claim a federal payroll tax credit through March 31, 2021 to offset the cost of that leave.  New York employers do not have an option with regard to providing COVID-19 leave, and therefore the extension of the FFCRA credit may be a valuable benefit to manage the associated costs.

There are some notable limitations on which employers can benefit from the federal tax credit:

  • Large Employers

Employers with more than 500 employees are subject to the New York State paid leave requirements, but were not subject to the FFCRA paid leave requirement and therefore cannot claim the credit;

  • Multiple Quarantines for the Same Employee

To the extent the reasons for leave under the FFCRA and New York State law have overlapped, the FFCRA tax credit was limited to a total of ten days of paid leave, per employee.  However, the New York State law does not appear to place a limit on the number of times an employee can receive paid leave, provided each leave is in accordance with a government-mandated quarantine or isolation order.  Once an employer has claimed the FFCRA tax credit for an employee, it appears that it cannot be claimed again for a repeat occurrence of quarantine.

New York State employers should consult with their tax advisor with regard to the availability of the tax credit in specific circumstances.

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17

December, 2020

FFCRA Is Ending, But NYS Employers Still Have COVID-Leave Obligations

By Tracey I. Levy

The Families First Coronavirus Response Act (“FFCRA”), which provides up to two weeks of paid, job-protected sick leave to covered employees for a variety of COVID-related reasons, and additional leave for care of a child related to COVID, is scheduled to sunset on December 31, 2020. Presently, there seems to be limited legislative or executive effort to extend the law beyond that date, even as we remain in the throes of the pandemic. That means that, as of January 1, 2021, employees will no longer be eligible for FFCRA leave, any employee who is on leave as of December 31, 2020 will be ineligible for continued leave after that date, and employers who continue to grant employees leave for an FFCRA-qualifying reason will not be entitled to claim tax credits for paid COVID leave days subsequent to December 31. In a nutshell, the sunset clause means an end to any federal paid leave benefit or tax credit, and restoration to the way things were back in March 2020, before the pandemic.

While those consequences are relatively simple to explain, the interplay with New York State law makes things a bit more complicated. New York State passed its own COVID-related leave law, which took effect on the same day as the FFCRA. New York State’s law grants all employees COVID-related leave if an employee is personally subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19, provided the employee is not physically able to work remotely while under quarantine. Employees are disqualified from the NYS COVID-related leave benefit only if they are being quarantined for having traveled outside the U.S., for non-work-mandated reasons, to a country for which the employee was on advance notice of a level two or level three travel notice having been issued by the CDC. New York State’s COVID-related leave law has no sunset date; rather, the leave benefit is specifically tied to COVID-19 and therefore, for as long as employees are subject to COVID-related quarantine or isolation orders, they remain eligible for the benefits provided under the state’s law.

As we noted previously in the Summer 2020 issue of our newsletter, Takeaways, employees who are directed by a healthcare provider to quarantine or isolate can obtain a quarantine or isolation order by following a process jointly defined by the New York State Departments of Health and Labor to request such an order from their local health department. New York City had issued a standing order with various appendices that, when satisfied, would be deemed to meet the state law quarantine order requirement, but the city has since withdrawn that page from its website.

For those employees who meet the NYS eligibility criteria, employers must provide the following, depending on their profitability and the size of their workforce:

  • 14 calendar days of job-protected, paid COVID-related leave, at the employee’s regular rate of pay, if the employer has 100 or more employees;
  • 5 calendar days of job-protected, paid COVID-related leave, at the employee’s regular rate of pay, and an additional 9 calendar days of job-protected, unpaid leave, if the employer has 11 to 99 employees or has fewer employees but had a net profit of $1,000,000 or more last year; and
  • 14 calendar days of job-protected, unpaid COVID-related leave, for all other employers with 10 or fewer employees.

Employees are entitled to apply for New York State Short-Term Disability and Paid Family Leave benefits, simultaneously and without any waiting period, during the unpaid portion of their quarantine leave, and all COVID-related leave is in addition to, and gets used before, any paid time off the employee may have otherwise available under the employer’s paid leave policies or the new New York State paid sick leave law.  New York State provides no reimbursement or subsidy to employers for the paid sick leave benefits required under the law.

As a reminder, FFCRA also provided employees with partially-paid leave benefits, of varying duration, in the event they were caring for a child or family member who was quarantined due to COVID. New York State law has no similar provision. However, to the extent an employee meets the eligibility criteria for Paid Family Leave (having worked at least 20 hours per week for 26 consecutive weeks), if either (i) the employee’s child has been quarantined and the employee is unable to work remotely while caring for that child, or (ii) the employee is unable to work because the employee needs to care for a close family member who contracts COVID-19, the employee can submit a claim for job-protected Paid Family Leave and receive paid time off benefits under that program.

New York State employers must therefore continue to provide COVID-related paid sick leave benefits to their employees, where the eligibility criteria are met, and shoulder those benefit costs, for as long as we are facing COVID-19-related quarantine orders.

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25

September, 2020

DOL Revises Regulations to the Families First Coronavirus Response Act

By Alexandra Lapes and Tracey Levy

Effective as of September 16, 2020, the United States Department of Labor (“DOL”) issued revised regulations to its temporary rule issued on April 1, 2020, implementing provisions of the Families First Coronavirus Response Act’s (“FFCRA”) paid sick leave and paid family leave mandates, to clarify workers’ rights and employers’ responsibilities, after a United States District Court for the Southern District of New York (“District Court”) struck down several portions of the temporary rule as invalid on August 3, 2020.

Specifically, the District Court ruled four parts of the DOL’s temporary rule regarding the FFCRA paid leave provisions were invalid: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee has work available from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the expanded definition of “health care provider” and whom an employer may exclude from being eligible for FFCRA leave; and (4) that employees who take FFCRA leave must provide their employers with certain documentation before taking leave. New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).

As previously reported in our Law Blog, the Emergency Paid Sick Leave Act (“EPSLA”) grants paid sick leave to employees who are unable to work or telework due to a need for leave because of any of six COVID-19-related criteria. Similarly, the Emergency Family and Medical Leave Act (“EFMLEA”) applies to employees unable to work or telework due to a need for leave to care for a child due to a public health emergency.

The DOL’s revisions reaffirm and provide further explanation of the following:

• Employees may take FFCRA leave only if work would otherwise be available to them.
The DOL’s April 1, 2020 rule stated an employee was entitled to FFCRA leave only if the qualifying reason was the actual reason (or the but-for cause) why the employee was unable to work, and therefore did not apply if an employee was furloughed or was unable to work because an office was closed. The District Court held the work-availability requirement was invalid because the DOL had only explicitly applied it to three of the six qualifying reasons for FFCRA leave.

In response, the DOL has reiterated that an employee may take sick leave or expanded family and medical leave only to the extent that a qualifying reason is the sole (“but-for”) reason the employee is not working. The DOL extended that standard to all qualifying reasons for FFCRA leave. The DOL explained that removing the work-availability requirement would not serve the purpose of the FFCRA paid leave provisions, because if there is no work to perform, there would be no need to discourage potentially infected employees from coming to work. However, the DOL has made clear that there must be a legitimate, non-retaliatory reason why the employer does not have work for an employee to perform.

• Where intermittent FFCRA leave is permitted by the DOL’s regulations, an employee must obtain employer approval to take FFCRA leave intermittently.
The DOL also confirmed its original position that employer approval is needed to take intermittent FFCRA leave. The District Court had struck down the employer-approval requirement as not adequately explained, so the DOL responded by providing more of a rationale for this requirement.
Tackling anticipated confusion for employees who have children in school on a hybrid schedule, the DOL clarified that the employer-approval requirement does not apply to employees who take FFCRA leave to care for their children on remote learning days, provided the child is attending school on the days that the school is open to the child. For FFCRA purposes, the DOL has reasoned that, if the remote learning days are determined and directed by the school then each such day constitutes a separate qualifying event for FFCRA leave, and such absences are not deemed to be “intermittent”. Employer consent would still be required, though, if an employee’s child’s school is closed for multiple days, and the employee seeks to use FFCRA leave on only some of those days (an intermittent basis) while the school is closed.

Similarly, the DOL explained that an employee is not eligible for FFCRA leave if the employee elects remote schooling for the employee’s child when in-person attendance would otherwise be possible. However, if an employee’s child is under a quarantine order or has been advised by a health care provider to self-quarantine, then FFCRA leave would be available, and if the employee asks to use FFCRA leave on only select days that the child is quarantined at home, then employer approval would be required for the leave to be taken intermittently.

The DOL’s revisions also amend and clarify that:

• The definition of “healthcare provider” includes only employees who (1) meet the definition of that term under the FMLA regulations and (2) who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
Under the FFCRA, employers are allowed to exclude employees who are “healthcare providers” from FFCRA leave coverage, recognizing these employees’ presence at work is essential in preventing disruptions to the health care system’s capacity to respond to COVID-19. The District Court struck down the DOL’s original definition of “healthcare provider” as being overly broad because it excluded employees in medical services who were not directly providing patient care. The DOL accordingly adopted a narrower definition of the term in the revised regulations that focuses on whether the employee is providing services that are integrated with and necessary for patient care.

• Employees must provide required documentation supporting their need for FFCRA leave to their employer as soon as practicable.
Under the FFCRA, employees are required to provide notice to receive paid sick leave after the first workday of leave, or for expanded family and medical leave, as soon as practicable, when the necessity for such leave is foreseeable. In the temporary rule issued by the DOL, it required this documentation be submitted “prior to” taking FFCRA leave, which the District Court held was inconsistent with the statute’s notice requirements. The DOL amended the new regulations to clarify that notice be provided as soon as practicable, which may be at the same time an employee requests leave, but the DOL recognized that is not necessarily always the case.

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21

May, 2020

Working Our Way to Normalcy: A Tri-State Guide to Reopening Your Business

By Tracey Levy and Alexandra Lapes

With the goal of getting employees back to work safely while ensuring business continuity, and in compliance with local, state, and federal laws, employers should consider the following key measures to take as New York, New Jersey, and Connecticut permit more businesses to reopen during the COVID-19 pandemic.

1 – Closely follow your local reopening status and what level your business falls into within the phases of reopening

In New York State, Governor Cuomo issued the New York Forward plan, a guide to reopening businesses in New York, which outlines that businesses can reopen in phases based on each region meeting specific health metrics.  As of May 20, 2020, seven regions (Capital Region, Central New York, Finger Lakes, Mohawk Valley, North Country, Southern Tier, and Western New York) are allowed to reopen and begin phase one of reopening.  See here for a breakdown of progress on the metrics by region.

Geographic region is only the first threshold in New York, as the state also is phasing reopening by industry.  The state provides a reopen “lookup tool,” where businesses in specific industries can determine whether they are eligible to reopen.   In order to operate, employers must comply with all safety guidelines for their particular industry.  All New York employers (including essential businesses) must also, as a condition of being open:

    1. affirm that they have read and understand their obligations to operate in compliance with New York State guidance – and submit that affirmation of compliance online; and
    2. develop a business safety plan, for which the state has issued a business safety plan template. While the business safety plan does not need to be submitted to the state, it must be posted in a conspicuous location in the workplace and made available to the state Department of Health or local health or safety authorities in the event of an inspection.

The reopening lookup tool contains specific guidance for certain industries, and covered employers must also affirm compliance with those industry-specific standards.

Employers should consult the NY Forward website at www.forward.ny.gov  and applicable Executive Orders at www.governor.ny.gov/executiveorders  periodically or whenever notified of the availability of new guidance.  Employers can also visit Empire State Development’s website for frequently asked questions on how the New York Forward reopening plan impacts their business.

For New Jersey employers, on May 18, 2020, Governor Murphy announced a six-principle plan to restart New Jersey’s economy.  While New Jersey’s stay-at-home order is still in effect until further notice, the Governor announced New Jersey is in phase one of the six-principle plan but stated that a coronavirus vaccine must be widely available before New Jersey fully reopens to the “new normal.” New Jersey created a reference tool for local establishments that are open and cooperating with state guidelines, see here.

Connecticut is also taking a gradual approach, which began May 20, 2020, for those businesses that see a sustained 14-day decline in hospitalizations, have the adequate testing capacity, have a contact tracing system in place, and have procured sufficient personal protective equipment (“PPE”). Businesses eligible to reopen as of May 20 are:

  • Restaurants (outdoor only, no bar areas);
  • Offices (continue WFH where possible);
  • Museums, zoos (outdoor only);
  • Remaining retail;
  • Outdoor recreation;
  • Personal services (hair); and
  • University research.

They join already open businesses such as manufacturing, construction, real estate, utilities, essential retail, childcare, and hospitals.  Industry-specific guidelines for reopening are available here.  All businesses must self-certify online prior to opening that they are complying with safety measures.  Connecticut’s “Stay Safe, Stay Home” and all other related safety measures otherwise remain in effect, with all nonessential workers directed to work from home, and social and recreational gatherings of more than five people prohibited. To stay up-to-date on Connecticut’s guidance to reopen see here, and for answers to frequently asked questions, see here.

Additional resources are available for safety information, and guidelines at:

2 – Prepare your workplace and take necessary protective measures

All businesses should take proactive measures to ease employees’ fears of returning to work and communicate new policies, procedures, and practices specific to their workplace.  While every workplace will differ, consider the following proactive measures:

  • Prepare a workplace safety plan in compliance with federal, state, and local law. A workplace safety plan should address how the business plans to:
    • physically distance employees to ensure six feet between personnel, including limiting in-person gatherings, posting social distance markers using tape in common areas, limiting in-person meetings as much as possible and holding essential meetings in well-ventilated and well-spaced locations, limiting contact with customers, and considering shift changes or alternating lunch breaks if appropriate to the industry or business; and
    • implement protective measures for employees, including health screening before employees can return to work and subsequent daily health assessments, an exposure-response plan, maintaining adequate supply of face coverings for employees, complying with CDC hygiene and sanitation requirements with a log of who will be cleaning what and the date/time/scope of cleaning, providing hand sanitizers, soap, and paper towels to employees and those entering the workplace, and having a plan for cleaning, disinfecting, and contact tracing in the event an employee tests positive for COVID-19.
  • Communicate the safety plan to all employees. Through signage, advance communications, and ongoing training, ensure all employees and visitors in the workplace are aware of the organization’s social distance and safety protocols.

3 – Determine whether employees are eligible for modified work arrangements or accommodations, FFCRA leave, or other benefits and apply and redefine your policies fairly

Employers should review their workplace policies and update them as appropriate to address COVID-19 related personnel issues such as leave entitlements, teleworking or flexible work arrangements, the continuation of benefits, and accommodations for vulnerable employees.  In addition to the Families First Coronavirus Response Act leave, which remains in effect for covered employers until December 31, 2020, employees in New York, New Jersey, and Connecticut may also be entitled to paid sick leave for COVID-19 related reasons.  See our recent issue of Takeaways and prior HR Strategy blog postings for more information on state-specific COVID-19 leave entitlements.

When restoring employees to work, employers should develop a methodology that applies consistent and nondiscriminatory criteria to determine the rehire order.  Be sure to notify state unemployment agencies of recalled workers, whether rehired or not, as employees forfeit their eligibility for continued unemployment benefits if they decline an offer of reinstatement because they are making more from unemployment.

Some employees who fall into a high-risk category for COVID-19 may request to remain on leave or continue working remotely as a reasonable accommodation.  Employers need to give such requests due consideration, as with any other accommodation request.

4 – Check for additional guidance and shifting requirements

These remain primarily unprecedented times, and the legal landscape for employers is shifting continuously.  Checking the available government links periodically is prudent, and employers should consider getting legal advice before taking employment actions.

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