On April 1, 2020, the U.S. Department of Labor (“DOL”) issued its temporary rule implementing the paid sick leave and expanded family and medical leave provisions of the Family First Coronavirus Response Act (“FFCRA”).  On August 3, 2020, the U.S. District Court for the Southern District of New York found certain portions of the regulations to be invalid.  Those provisions relate to: (1) excluding employees from paid leave benefits if their employers do not have work for them; (2) permitting intermittent leave only upon the employer’s consent; (3) excluding health care providers as broadly defined in the regulations; and (4) requiring certain documentation as a prerequisite to taking leave.  See New York v. U.S. Department of Labor, et al, No. 20-CV-3020 (S.D.N.Y. Aug. 3, 2020) and our previous alert on that decision. 

On September 11, 2020, the DOL announced revisions to the regulations to clarify workers’ rights and employers’ responsibilities under the FFCRA, in light of the District Court’s decision.  The revised rule, which takes effect on September 16, 2020, reaffirms and provides additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available, and that they need employer approval to take intermittent leave.  The revisions also revise the definition of “healthcare provider,” and clarify and correct documentation and notice requirements.

1. Reaffirming and Explaining the Work-Availability Requirement

The April 1, 2020 temporary rule stated that an employee is entitled to FFCRA leave only if the qualifying reason is a but-for cause of the employee’s inability to work.  In other words, an employee cannot take FFCRA leave if the employer would not have had work for the employee to perform, even if the qualifying reason for the leave did not apply. The District Court held that the work-availability requirement was invalid because it was only explicit in the regulations for 3 of the 6 qualifying reasons for FFCRA leave, and because the DOL provided insufficient reason for imposing the requirement.  New York, 2020 WL 4462260 at *7-9.

The DOL nevertheless reaffirmed the work-availability requirement for taking leave under the FFCRA and, in keeping with the Department’s original intent, amended the regulations to explicitly include the work-availability requirement to all qualifying reasons. 29 CFR 826.20(a)(3), (a)(4), (a)(10).  The DOL also provided a fuller explanation for its reasoning, stating that it is consistent with Supreme Court precedent on statutory interpretation as well as the Department’s long-standing interpretation of the term “leave” in the FMLA. 

2. Reaffirming and Explaining the Employer-Approval Requirement for Intermittent Leave

The April 1, 2020 temporary rule provides that employees who report to the worksite may take FFCRA leave on an intermittent basis only to care for a child whose school or place of care is closed or unavailable due to COVID-19, and only with the employer’s consent.  This is due to the higher risk of spreading the virus associated with the other qualifying reasons for leave.  As for employees who are teleworking and not reporting to the worksite, they may take intermittent leave for any of the qualifying reasons under the FFCRA, but only with the employer’s consent.  For employees reporting to the worksite, the District Court upheld the prohibition on intermittent leave for any reason other than school or child care closure due to COVID-19, but found that the requirement of employer consent was unreasonable.  New York, 2020 WL 4462260, at *12

The DOL again reaffirmed the requirement that employer approval is needed to take intermittent leave under the FFCRA in all situations. 29 CFR 826.50.  This is consistent with longstanding principles governing intermittent leave under FMLA regulations, and avoids unduly disrupting the employer’s operations.

3. Revising the Definition of “Health Care Provider”

The FFCRA allows employers to exclude employees who are “health care provider[s]” or “emergency responder[s]” from eligibility for paid sick leave and expanded family and medical leave.  The April 1, 2020 temporary rule adopted the FMLA definition of “health care provider,” 29 CFR 825.102 and 825.125, when referring to medical professionals who may advise an individual to self-isolate due to concerns related to COVID-19.  In this context, the term “health care provider” is limited to a “doctor of medicine or osteopathy who is authorized to practice medicine or surgery” by the state, or “any other person determined by the Secretary to be capable of providing health care services.” See 29 U.S.C. 2611.  The DOL promulgated a different definition of “health care provider” when referring to employees who can be excluded from the entitled to paid leave under the FFCRA.  The District Court held that this second definition was overbroad, as it would include employees of health care facilities with no nexus whatsoever to the provision of healthcare services.  See New York, 2020 WL 4462260, at *9–10.

Revised Definition

The DOL revised its definition of “health care provider” which applies only for purposes of determining which employees can be optionally excluded from FFCRA leave, 29 CFR 826.30(c)(1)(i)(B), as follows:

(1) Health care provider—(i) Basic definition. For the purposes of Employees who may be exempted from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, a health care provider is

(A) Any Employee who is a health care provider under 29 CFR 825.102 and 825.125, or;

(B) Any other Employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.

The revised definition thus includes employees who fall within the FMLA definition under 29 CFR 825.1102 and 825.125, such as physicians and others who make medical diagnoses.  It also includes additional employees who are “capable of providing health care services,” meaning those “employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” See 29 CFR 826.30(c)(1)(i)(B).  Under this definition, it is not enough that an employee merely works for an entity that provides health care services, but must be employed to provide diagnostic, preventative, or treatment services or services that are integrated with and necessary to the provision of those services. 

Types of Employees

Section 826.30(c)(1)(ii) of the regulation lists three types of employees who may qualify as “health care providers,” which include only:

(A) Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described in (c)(1)(i)(B);

(B) Employees providing services described in (c)(1)(i)(B) of this section under the supervision, order, or direction of, or providing direct assistance to, a person described in paragraphs (c)(1)(i)(A) or (c)(1)(ii)(A) of this section; and

(C) Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.

Thus, individuals who provide services that affect, but are not integrated into, the provision of patient care are not covered by the definition.  Examples of excluded employees are IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants and billers. 

Typical Work Locations and Examples of Services

The revised definition also provides a non-exhaustive list of facilities where health care provides may work, including temporary health care facilities.  29 CFR 826.30(c)(1)(iv).  The list contains almost the same set of health care facilities listed in the original regulation but, consistent with the District Court’s decision, explicitly provides that not all employees who work at such facilities are necessarily health care providers within the definition.  Thus the list is merely meant to be a helpful guidepost.

Finally, the revised definition provides specific examples of services that may be considered diagnostic, preventative, treatment or other services integrated with and necessary to the provision of patient care.  29 CFR 826.30(c)(1)(v). The examples, which are non-exhaustive, include diagnostic services such as taking or processing samples, performing or assisting the performance of x-rays and other diagnostic tests and interpreting tests; preventative services such as screenings, check-ups and counseling; treatment services such as performing surgery, administering or providing medication and providing or assisting in breathing treatments; and other integrated and necessary services such as bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures and transporting patients and samples.

4. Revising Notice and Documentation Requirements

The FFCRA permits employers to require employees to follow reasonable notice procedures in order to continue receiving paid sick leave and, where the need for leave is foreseeable, require employees taking expanded family and medical leave to provide notice of leave as is “practicable.”  However, the April 1, 2020 temporary rule provides a list of documentation that an employee must provide the employer in order to take FFCRA leave, and states that the documentation must be provide “prior to” taking leave.  29 CFR 826.100.  The District Court held that the requirement to provide documentation “prior to” taking leave is inconsistent with the statute’s notice provision. 

The DOL amended the regulation to clarify that the documentation requirement need not be given “prior to” taking paid sick leave or expanded family and medical leave, but rather may be given as soon as practicable.  29 CFR 826.100.  In addition, section 826.90(b), which governs the timing and delivery of notice, previously stated that “Notice may not be required in advance, and may only be required after the first workday” that an employee takes paid sick leave or expanded family and medical leave.  29 CFR 826.90.  That regulation, which was correct with respect to paid sick leave, was revised to state that advanced notice of expanded family and medical leave is required as soon as practicable, which generally means providing notice before taking leave.  Ibid.

Takeaway

Employers of health care workers and those with child care needs as schools partially reopen should re-examine whether they must provide paid sick leave and expanded family and medical leave under the FFCRA, including intermittent leave, and the notice and documentation requirements necessary to support such leave.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On April 3, 2020, Governor Andrew Cuomo signed into law a statewide sick leave requirement, mandating that employers provide sick leave to all employees. (“Sick Leave Law”) This is different from, and in addition to, the emergency COVID-19 legislation signed on March 18, 2020, guaranteeing sick leave for employees who have been quarantined as a result of COVID-19.

The NY Sick Leave Law amends the New York Labor Law by adding a section 196-b, and takes effect on September 30, 2020. Although employers must allow employees to begin accruing paid sick leave on September 30, 2020, employers are not required to allow employees to use sick leave until January 1, 2021. The Sick Leave law applies to all private employers regardless of size, although the level of leave required depends on the employer’s size and income, as discussed below.

Sick Leave Requirements

Every employer is required to provide its employees with sick leave as follows:

Small Employers

  • Employers with four (4) or fewer employees in a calendar year, with a net income of $1 million or less in the previous tax year, must provide their employees with up to forty (40) hours of unpaid sick leave per calendar year.
  • Employers with four (4) or fewer employees in a calendar year, with a net income of greater than $1 million in the previous tax year, must provide their employees with up to forty (40) hours of paid sick leave per calendar year.

Medium Employers

  • Employers with between 5 – 99 employees in a calendar year must provide their employees with up to forty (40) hours of paid sick leave per calendar year.

Large Employers

  • Employers with 100 or more employees in a calendar year must provide their employees with up to fifty-six (56) hours of paid sick leave per calendar year.

Accrual and Use of Sick Leave

Beginning September 30, 2020, sick leave must be accrued at a minimum rate of 1 hour per every 30 hours worked. Employers may elect to provide employees with their total sick leave allotment at the beginning of the year. However, if they elect to do so, they cannot reduce or deduct any unused sick leave at the end of the year.

Eligibility for Taking Leave

Beginning January 1, 2021, employees may use sick leave for the following purposes:

  • For the employee or employee’s family member’s mental or physical illness, injury or health condition;
  • For the diagnosis, care or treatment of an employee or employee’s family member’s mental or physical illness, injury or health condition;
  • For an absence from work when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking, in order to:
    • Obtain services from a domestic violence shelter, rape crisis center or other program;
    • To participate in safety planning, relocate, or other safety actions;
    • To meet with an attorney or other social services provider;
    • To file a complaint or domestic incident report;
    • To meet with a district attorney’s office;
    • To enroll children in a new school; or
    • To take any other action necessary to ensure the health and safety of the employee or employee’s family member.

Use of Sick Leave

Employers may set a reasonable minimum increment for the use of sick leave, which must not exceed four (4) hours.

Employees must receive paid leave at his or her regular rate of pay, or the applicable minimum wage, whichever is greater.

Employers are prohibited from discharging, threatening, or otherwise discriminating or retaliating against employees for requesting or using sick leave. Upon return from sick leave taken under the statute, employees must be restored to their same position and upon the same terms and conditions of employment as existed prior to taking leave.

Notice and Recordkeeping 

Employers must provide employees with a summary of the amount of sick leave accrued and used in the calendar year, upon an oral or written request. The information must be provided to the employee within three (3) business days of such request. 

Carryover Requirements 

Any unused sick leave shall be carried over to the following calendar year. However, employers may limit the use of sick leave per calendar year as follows:

  • Employers with less than 100 employees may limit use of sick leave to 40 hours per calendar year.
  • Employers with 100 or more employees may limit use of sick leave to 56 hours per calendar year.

Moreover, employers are not required to pay employees for unused sick leave upon the employee’s termination, resignation, retirement, or other separation from employment.

Interaction with Company Leave

Employers who have adopted a sick leave policy or time off policy are not required to provide any additional sick leave under the Sick Leave Law, provided the employer’s policy meets or exceeds the amount of leave, accrual, carryover and use requirements under the statute.

Implications for Collective Bargaining Agreements 

  • Comparable Benefits. On or after September 30, 2020, employers may enter into a collective bargaining agreement (“CBA”) to provide comparable benefits in the form of leave, compensation, other employee benefits, or some other combination thereof, in lieu of the leave provided by the statute. However, the agreement must specifically acknowledge the provisions in the statute.
  • Terms and Conditions of Sick Leave. Employers may also negotiate with unions on different terms and conditions of sick leave than what is required by the statute, provided the agreement specifically acknowledges the provisions in the statute.

Takeaway

Employers that do not currently have a sick leave policy should begin to develop a policy compliant with the Sick Leave Law by September 30, 2020.

Employers that already provide their employees with sick leave benefits should review their policy to determine whether it meets or exceeds the requirements of the new Sick Leave Law in terms of leave time, accrual, carryover and use requirements.

Employers should consider the new sick leave requirements when negotiating a CBA that goes into effect on or after September 30, 2020.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was signed into law, entitling certain employees to take up to two weeks of paid sick leave and up to 12 weeks of expanded family and medical leave, 10 of which are paid, if unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. See Client Alert – Responding to the Coronavirus – Paid Sick Leave. The FFCRA applies to employers with fewer than 500 employees, while employers with fewer than 50 employees and health care providers may be exempted from the leave provisions.

 

On August 27, 2020, the U.S. Department of Labor’s Wage and Hour Division published guidance related to the reopening of schools, and released answers to Frequently Asked Questions (“FAQ”) concerning qualification for paid leave under the FFCRA. The new FAQ explain eligibility for paid leave when a child attends a school operating on an alternate day basis, or when parents choose remote learning despite the availability of in-person instruction, or when a school begins the year with remote learning but may shift to in-person instruction if conditions change.

Alternate Day School Attendance Scenario
Where a school is open each day, but students must alternate between days attending in person and days participating in remote learning, and students are only permitted to attend school on their allotted days, employees may be eligible for FFCRA leave on days when their child is not permitted to attend school in person. However, leave is only available if actually needed to care for the child, and no other suitable person is available to do so. For purposes of the FFCRA, the school is effectively “closed” to the child on days the child cannot attend in person.

Optional In-Person School Attendance Scenario
Where parents are provided a choice between allowing their children to attend school in person or participate remotely, employees who choose remote learning for fear of contracting the virus are not eligible for FFCRA leave. Under the circumstances, for purposes of the FFCRA, the child’s school would not be considered “closed” due to COVID-19 related reasons. However, if the child is home due to an order of quarantine or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible for paid sick leave under the FFCRA.

Remote-Learning Only Scenario
Where a school is beginning the school year under a remote learning program due to concerns of COVID-19, but has announced it will continue to re-evaluate whether in-person attendance can be implemented, employees may be eligible for FFCRA leave while the school remains closed for in-person instruction, provided leave is actually needed to care for the child, and no other suitable person is available to do so. However, if the school reopens, the availability of FFCRA leave will depend on the school’s particular operations.

Takeaway

Despite schools reopening this fall, employees may nevertheless be eligible for FFCRA leave to care for their child due to school closure, depending on the availability of in-person instruction.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On August 24, 2020, the U.S. Department of Labor (“DOL”) issued guidance for employers to track the number of hours of compensable work performed by employees who are teleworking or otherwise working remotely away from the worksite, so as to comply with the Fair Labor Standards Act (“FLSA”).  Employers must pay their employees for all scheduled and unscheduled work that the employer has knowledge of through reasonable diligence. While the guidance responds directly to needs created by the COVID-19 crisis, it is also applicable to other telework or remote work arrangements.

FLSA Requirements

The FLSA requires employers to compensate their employees for all hours worked, including work not requested but suffered or permitted, including work performed at home.  See 29 C.F.R. § 785.11-12.  If an employer knows or has reason to believe that work is being performed, it must count the time as hours worked.  Id. at § 785.11.  Employers are required to exercise control to ensure that work is not performed if they do not want it to be performed.   Id. at § 785.13.  Thus, employers have the burden of preventing work that is not desired, and “[t]he mere promulgation of a rule against such work is not enough.” Ibid.

Employers Must Pay for All Hours Worked That It Knows or Has Reason to Believe Was Performed

The rule is also applicable to work performed away from the premises.  If an employer knows or has reason to believe that work is being performed at home or remotely, it must count the time as hours worked.  See 29 C.F.R. § 785.12.  Employers may counsel or discipline employees who are spending too much time on a particular task.  The employer must however compensate the employee for all time worked.

According to the DOL guidance, an employer may have actual or constructive knowledge of additional unscheduled hours worked by its employees if the employer should have acquired such knowledge through “reasonable diligence.”  See Hertz v. Woodbury County, Iowa, 566 F.3d 775, 782 (8th Cir. 2009).   One way an employer can establish reasonable diligence to acquire knowledge of its employees’ unscheduled hours is by establishing a reasonable process for an employee to report uncompensated work time, including hours not requested by the employer.  See Allen v. City of Chicago, 865 F.3d 936, 938 (7th Cir. 2017), cert. denied, 138 S. Ct. 1302 (2018).  If an employee fails to report unscheduled hours through such procedure, the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours or provide compensation for those hours.  However, if the employer’s reporting system implicitly or overtly discourages or impedes accurate reporting, or if employees are not properly instructed on using the reporting system, it will not constitute reasonable diligence, and the employer must compensate its employees for all hours worked.  Employees may not waive their rights to compensation under the FLSA.  See Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382, 388 (6th Cir. 2016).

Takeaway

As the pandemic has made long-term telework a reality for many businesses, effected employers should establish and train their employees on a reasonable process for reporting uncompensated work time.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On August 8, 2020, President Trump signed an Executive Order providing lost wages assistance (“LWA”) to those who lost employment as a result of the COVID-19 pandemic, to supplement State unemployment benefits.   On August 12, 2020, the U.S. Department of Labor (“DOL”) issued guidance on administering LWA.

The LWA will be administered by the States through a grant agreement with the Federal Emergency Management Agency (“FEMA”).  FEMA will not administer the benefits directly to individuals, but States will distribute the funds through their unemployment insurance (“UI”) system, as a supplemental payment.

LWA is funded using a 75 percent federal cost share and a 25 percent State match.  Upon applying and receiving a grant award from FEMA, States may provide eligible claimants $400 per week, with a $300 federal contribution, in addition to the claimant’s individual UI benefit.  States wishing to provide the maximum $400 benefit must fund $100 of the amount to cover the 25 percent State match.

Alternatively, States may count funds already used to provide regular State UI payments toward the State match. If States choose this option, eligible claimants will only receive an LWA payment of $300 from the federal government in addition to their weekly benefit amount.

To be eligible for LWA benefits, a claimant must: (1) provide self-certification that he/she is unemployed or partially unemployed due to disruptions caused by COVID-19; and (2) receive, for the week of unemployment, at least $100 of regular unemployment compensation (“UC”) or any of the following UC programs:

  • Unemployment Compensation for Federal Employees (UCFE);
  • Unemployment Compensation for Ex-Servicemembers (UCX);
  • Pandemic Emergency Unemployment Compensation (PEUC);
  • Pandemic Unemployment Assistance (PUA);
  • Extended Benefits (EB);
  • Short-Time Compensation (STC);
  • Trade Readjustment Allowances (TRA); and
  • Payments under the Self-Employment Assistance (SEA) program.

The LWA is payable to eligible claimants for weeks of unemployment or partial unemployment ending on August 1, 2020 through weeks of unemployment ending on December 27, 2020.  The LWA program will terminate on December 27, 2020, or until FEMA expends the $44 billion from the Disaster Relief Fund (“DRF”) account designated for the LWA program, or the total balance of the DRF account decreases to $25 billion, or legislation is enacted that provides similar supplemental federal unemployment compensation.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On August 8, 2020, President Trump signed four Executive Orders, after negotiations with Congress on a new Coronavirus relief package collapsed.  The Executive Orders provide for (1) a $400 weekly enhanced unemployment benefit; (2) a payroll tax holiday; (3) assistance to renters and homeowners from eviction; and (4) student loan relief.

Enhanced Unemployment Benefits

This Executive Order provides for a $400 weekly enhanced unemployment benefit, the cost of which is to be shared 75% ($300) from the federal government and 25% ($100) from the States.  The Federal Emergency Management Agency (“FEMA”) is directed to assist in providing benefits from the Department of Homeland Security’s Disaster Relief Fund (“DRF”), and States are called upon to use funds appropriated to them through the Coronavirus Relief Fund Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), or other State funds, to cover their share of the costs.  Under the Executive Order, claimants are not eligible for the $400 weekly enhanced unemployment benefit if they do not receive at least $100 per week in enhanced unemployment benefits from the State.

The enhanced unemployment benefits are available from the week of unemployment ending August 1, 2020, until the week of unemployment ending December 6, 2020, or until the balance of the DRF reaches $25 billion, whichever occurs first. Currently, the DRF has approximately $70 billion in emergency assistance funding available. The assistance will also terminate upon enactment of legislation providing supplemental federal unemployment compensation, or similar compensation, for unemployed individuals.

Payroll Tax Holiday

This Executive Order provides for a payroll tax holiday for those earning less than $4,000 bi-weekly (or less than $104,000 annually), calculated on a pre-tax basis.  Specifically, the Treasury Department is directed to allow employers to defer the withholding, deposit and payment of a portion of eligible payroll taxes from September 1, 2020 through December 31, 2020, without any penalties or interest.  The Secretary of Treasury is to “explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred” pursuant to the Executive Order.

Eviction and Foreclosure Assistance

This Executive Order provides assistance to renters and homeowners to avoid eviction or foreclosure resulting from financial hardships caused by COVID-19.  The Secretary of Health and Human Services and the Director of CDC are directed to consider whether any measures temporarily halting evictions are necessary to prevent the further spread of COVID-19.  In addition, the Secretary of Treasury is directed to identify available federal funds to provide temporary financial assistance to renters and homeowners who are struggling to meet their monthly rental or mortgage obligations, and the Secretary of Housing and Urban Development is directed to take actions to avoid eviction or foreclosure, including encouraging and providing assistance to public housing authorities, affordable housing owners, landlords and recipients of federal grant funds to minimize evictions and foreclosures.

However, the Executive Order does not extend the eviction moratorium in the CARES Act which has expired, nor does it extend the foreclosure suspension imposed by the Federal Housing Finance Agency, which expires on August 31, 2020.

Student Loan Relief

This Executive Order provides for an extension of student loan payment relief.  Borrowers can continue to defer payments, without interest, on student loans held by the Department of Education, until December 31, 2020.

Takeaway for Employers

The legality of the Executive Orders may be challenged in court. Even if upheld, many States have been facing budget shortfalls due to the pandemic and may have difficulty funding their portion of the enhanced unemployment benefits.  In response, President Trump stated on August 9th that it was possible that the federal government could pay the entire cost, upon request by Governors, which would be determined on a case-by-case basis.  As for the payroll tax, while temporarily deferred, it would still need to be repaid if not foregiven by further legislation.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On March 18, 2020, the federal Families First Coronavirus Response Act (“FFCRA”) was signed into law, requiring certain employers to provide federally subsidized paid sick leave or expanded family and medical leave to employees who are unable to work because of the pandemic.

On April 6, 2020, the U.S. Department of Labor (“DOL”), which was charged with administering the statute, promulgated a Final Rule implementing the law’s provisions.  See 85 Fed. Reg. 19,326 (Apr. 6, 2020) (“Final Rule”).  The State of New York brought suit against the DOL under the Administrative Procedure Act, claiming that four features of the Final Rule exceeded the agency’s authority under the statute.  Those provisions relate to: (1) excluding employees from paid leave benefits if their employers do not have work for them; (2) excluding health care providers as broadly defined in the Final Rules; (2) permitting intermittent leave only upon the employer’s consent; and (4) requiring certain documentation as a prerequisite to taking leave.  On August 3, 2020, the U.S. District Court for the Southern District of New York issued its Opinion and Order, striking down the four provisions, as summarized below.  See New York v. U.S. Department of Labor, et al, No. 20-CV-3020 (S.D.N.Y. Aug. 3, 2020).

Overview of the Families First Coronavirus Response Act

The litigation involved two provisions of the FFCRA, the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), and the Emergency Paid Sick Leave Act (“EPSLA”).

The EFMLEA, which amends Title I of the Family and Medical Leave Act, 29 U.S.C. 206 et seq. (“FMLA”), permits certain employees to take up to twelve weeks of leave, up to ten weeks of which must be paid, if they are unable to work (or telework) because they must care for a dependent child whose school or place of care is closed or whose child care provider is unavailable, due to COVID-19 related reasons.

The EPSLA requires certain employers to provide eligible employees up to two weeks of paid sick leave if the employee is unable to work (or telework) because the employee: (1) “is subject to a Federal, State, or local quarantine or isolation order related to COVID-19”; (2) “has been advised by a health care provider to self-quarantine due to concerns related to COVID-19”; (3) “is experiencing symptoms of COVID-19 and seeking a medical diagnosis”; (4) “is caring for an individual subject” to a quarantine or isolation order by the government or a healthcare provider; (5) is caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19; or (6) “is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”  See FFCRA §§ 5102(a).

Decision

On April 6, 2020, the DOL promulgated its Final Rule implementing the FFCRA, and the State of New York thereafter filed suit challenging four provisions of the Final Rule, including: (1) the “work-availability” requirement; (2) the definition of “health care provider;” (3) provisions relating to intermittent leave; and (4) documentation requirements.   On August 3, 2020, the Court issued its ruling, striking down the four challenged provisions as exceeding the DOL’s authority, as follows.

Work-Availability Requirement.  While both the EFMLEA and the EPSLA apply to employees unable to work (or telework) due to a qualifying COVID-19 related reason, the Final Rule implementing the FFCRA excludes from these benefits employees whose employer “does not have work” for them, such as if the employer temporarily closes.  See Final Rule at 19329 (§ 826.20).  The court found that the DOL’s work-availability requirement is arbitrary and capricious and contrary to the statute’s language.  See New York v. U.S. Department of Labor, et al, No. 20-CV-3020 at *16-17.

Definition of “Health Care Provider.”  Both the EFMLEA and the EPSLA permit employers to deny exclude from coverage employees who are health care providers or emergency responders.  See FFCRA §§ 3105, 5102.  The term “health care provider,” as defined under the FMLA, is limited to a “doctor of medicine or osteopathy who is authorized to practice medicine or surgery” by the state, or “any other person determined by the Secretary to be capable of providing health care services.” See 29 U.S.C. 2611.  Under the Final Rule, the definition of “health care provider” is expanded to include anyone:

employed at any doctor’s office, hospital, health care center, clinic,  post-secondary  educational  institution  offering  health  care  instruction,  medical  school,  local  health  department  or  agency,  nursing facility, retirement facility, nursing home, home health care provider,  any  facility  that  performs  laboratory  or  medical  testing,  pharmacy,  or  any  similar  institution,  Employer,  or  entity.    This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions,

as well as:

any individual employed by an entity that contracts with any of these institutions  described  above  to  provide  services  or  to  maintain  the  operation of the facility where that individual’s services support the operation of the facility, [and] anyone employed by any entity that provides   medical   services,   produces   medical   products,   or   is   otherwise  involved  in  the  making  of  COVID-19  related  medical  equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.

Final Rule at 19,351 (§ 826.25).  The court found that the interpretation in the Final Rule is overbroad and exceeds the DOL’s authority.  See New York v. U.S. Department of Labor, et al, No. 20-CV-3020 at *19.

Intermittent Leave.  Intermittent leave is not addressed in the FFCRA itself.  However, the Final Rules provide that an employee may take paid leave intermittently under the EPSLA or EFMLEA only for certain qualifying conditions, and only with the employer’s consent.  See Final Rule at 19353 (§826.50).  As to those qualifying reason for which intermittent leave is not permitted, once an employee begins taking paid sick leave, the employee must use the permitted days of leave consecutively until the need for leave abates.  But the employee retains any remaining paid leave and may resume leave if and when another qualifying condition arises.  Ibid.  The court found that the intermittent-leave rule is reasonable insofar as it bans intermittent leave on certain qualifying conditions, but unreasonable insofar as it permits intermittent leave only upon employer consent.  See New York v. U.S. Department of Labor, et al, No. 20-CV-3020 at *23.

Documentation Requirements.  While the EFMLEA provides that, where the need for leave is foreseeable, employees should provide the employer with such notice of leave as is “practicable,” and the EPSLA provides that employers may require employees to follow reasonable notice procedures in order to continue receiving paid sick leave, the Final Rules require employees to submit documentation indicating the reason for leave, duration, and authority for the isolation or quarantine order prior to taking FFCRA leave.   See Final Rule at 19,355 (§826.100).  To the extent the documentation requirements in the Final Rule are a precondition to leave, the court found they are inconsistent with the statute.  See New York v. U.S. Department of Labor, et al, No. 20-CV-3020 at *24.

Implications

This is the first lawsuit challenging the DOL’s Final Rules, and it is expected that the ruling will be appealed.  Nevertheless, employers who are facing further temporary closures or who employ health care workers should re-examine whether they must provide leave to certain employees under the FFCRA, including intermittent leave, and what type of notice and documentation will be required.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On Thursday, July 20, 2020, the U.S. Department of Labor issued guidelines concerning the return-to-work provisions of the Families First Coronavirus Response Act (“FFCRA” or “the Act”). Since going into effect on April 2, 2020, the FFCRA has provided emergency paid sick leave, and paid family leave for workers affected by COVID-19. The Act provides that employers with fewer than 500 employees must grant 80 hours of paid sick leave to workers who are required to quarantine because of exposure to COVID-19 or who are unable to work because of the closure of their child’s school or daycare center. In addition, the parents of children whose place of care is closed are granted up to 12 weeks of FMLA leave, 10 of which must be paid.

1. FMLA Leave for Furloughed Employees Returning to Work

The new guidance makes clear that furloughed employees are entitled to the remainder of their FMLA leave once they return to work. If an employee was eligible for FMLA leave, and use some of the leave time before being furloughed, the employee is entitled to use the remainder of the unused time upon returning from leave.

2. Work Positions of Employees Returning from Sick Leave

The new guidance also makes it clear that workers returning from leave after caring for a COVID-positive family member may be placed in roles that require minimal interactions with coworkers and customers. Returning workers are entitled to the same or a substantially similar position they held before taking leave, but they may be required to telework or in a capacity that limits their physical interactions with coworkers. Employers are allowed to require employees to take COVID-tests before returning to work, but are advised to follow guidelines to avoid violating state and federal laws such as the Americans with Disabilities Act.

3. FFCRA Leave – Employer Retaliation

The Department of Labor’s guidance makes clear that employers may not discriminate or retaliate against employees for using FFCRA and cannot factor the need for FFCRA into employment decisions. Employers are expressly prevented from extending an employee’s furlough simply because the employee would need to take FFCRA if called to return to work.

Takeaway

The FFCRA provisions will continue until at least until Dec. 31, 2020. As states continue to gradually reopen, employers are advised to take the necessary precautions when reintegrating furloughed employees into their workforce. Many furloughed employees will be entitled to leave upon their return, and employers will have to maintain a delicate balancing act between setting a schedule to maintain a full workforce and providing employees with the leave federal law provides. We will keep you alerted to any changes in legislation, and are available to provide advice or design return to work policies.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On June 25, 2020, the New York City Health Department updated its guidance on personal protective equipment (“PPE”) for health care personnel (“HCP”) and N95 respirators, in line with recent guidance from the Centers for Disease Control and Prevention (“CDC”). In addition, due to declining community transmission in New York City, the Department also revised its guidance on work restrictions for health care personnel following exposure to COVID-19. However, these guidelines may again need to be revised as the pandemic evolves.

HCP are now advised to use eye protection (goggles or face shield), in addition to face masks or higher level of respiratory protection, during all patient encounters, whether or not COVID-19 is suspected. CDC recommends this protection because most infections occur when the virus enters unprotected mouths, noses, or eyes, and pre-symptomatic and asymptomatic transmission of the virus has been demonstrated.

Due to shortages of N95 respirators, providers and facilities are encouraged to continue conservation measures, including extended use and reuse of N95 respirators, as appropriate. Moreover, providers and facilities should prioritize N95 respirators for aerosol-generating procedures or settings where such procedures are conducted frequently, such as intensive care units. For evaluation of patients with COVID-like illness, clinicians are still advised to use gloves, gown, face mask (or N95 respirator), and eye protection.

Asymptomatic health care personnel (“HCP”) exposed to individuals with COVID-19 in the healthcare setting (patient, visitor, other HCP) should be excluded from work for 14 days. Note, this is a departure from the Health Advisory issued by the New York State Department of Health on March 31, 2020, allowing asymptomatic HCP exposed to a suspected or confirmed case of COVID-19 to continue working if certain conditions were met, and excluding the HCP would result in staff shortages. Due to the current phase of the pandemic in New York City, exclusion of HCP from work has become more feasible.

Exposure is defined as any of the following:

    • HCP was not wearing a face mask or respirator and spent 15 minutes or more within 6 feet of a person with confirmed COVID-19;
    • HCP was not wearing eye protection and spent 15 minutes or more within 6 feet of a person with confirmed COVID-19 who was not wearing a face covering;
    • HCP did not wear all recommended PPE (gloves, gown, N95 respirator, and either goggles or face shield) when a procedure was performed that can generate aerosols (e.g., intubation, suctioning, high-flow oxygen, nebulizer).

HCP exposed to COVID-19 in the community are also recommended to self-quarantine for 14 days, unless directed otherwise by their employer. When excluded from work, asymptomatic HCP must self-quarantine for 14 days, and self-monitor for symptoms by taking their temperature twice daily. If they have a fever or other COVID-19 symptoms, HCP should contact their health care provider to arrange for assessment and COVID-19 testing. HCP should also notify their employer. If HCP is suspected or confirmed to have COVID-19, they should consult their facility’s policies and State requirements before returning to work. HCP may be eligible for a free hotel room through NYC’s COVID-19 Hotel Program, if unable to self-quarantine or isolate in their home.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On June 24, 2020, New York State issued a travel advisory requiring that anyone returning from a travel to states that have a significant degree of community-wide spread of COVID-19 must quarantine for a period of 14 days, consistent with the Department of Health (“DOH”) regulations for quarantine. The travel advisory went into effect at 12:01 a.m. on June 25, 2020.

On July 2, 2020, in response to frequently asked questions concerning the travel advisory, New York provided the following additional guidance.

  • The travel advisory is not a mandatory quarantine order. The travel advisory requires all New Yorkers, as well as those visiting from out of state, to take personal responsibility for complying with the advisory. However, DOH and the local health departments reserve the right to issue a mandatory quarantine order, if needed. Individuals who would like an order for purposes of applying for sick leave benefits should contact the local health department. However, pursuant to Executive Order 202.45, any New York State resident who voluntarily travels to a restricted state will not be eligible for benefits under New York’s COVID-19 paid sick leave law.
  • Special protocols for first responders and essential workers. As set out in DOH’s June 24, 2020 interim guidance for quarantine restrictions on travelers arriving in New York from restricted states, specific protocols must be followed by essential workers to allow such workers to work upon their return to New York, while taking steps to mitigate risk of transmission of COVID-19, including the following:
    • Short Term – essential workers traveling to New York State for less than 12 hours (e.g., passing through, delivering goods, and other short duration activities) should:
      • stay in their vehicle and limit exposure to the public as much as possible;
      • monitor temperature and signs of symptoms, wear a face covering in public, maintain social distance, and clean and disinfect workspaces;
      • avoid extended periods in public, contact with stranger, and large congregate settings, for 14 days.
    • Medium Term – essential workers traveling to New York State for less than 36 hours (e.g., delivering goods in New York, and other medium duration activities) should:
      • monitor temperature and signs of symptoms, wear a face covering in public, maintain social distance, and clean and disinfect workspaces;
      • avoid extended periods in public, contact with stranger, and large congregate settings, for 14 days.
    • Long Term – essential workers traveling to New York State for greater than 36 hours (e.g., working on longer projects, fulfilling extended employment obligations, and other longer duration activities) should:
      • Seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours) to ensure they are not positive;
      • monitor temperature and signs of symptoms, wear a face covering in public, maintain social distance, and clean and disinfect workspaces;
      • avoid extended periods in public, contact with strangers, and large congregate settings, for 14 days.
    • Special protocols for healthcare personnel. Entities may allow healthcare personnel (“HCP”) who have traveled to a restricted state to work as essential workers if all the following conditions are met:
      • Furloughing the HCP would result in staff shortages that would adversely impact operation of the healthcare entity, and all other staffing options have been exhausted
      • HCP is asymptomatic
      • HCP received diagnostic testing for COVID-19 within 24 hours of arrival in New York
      • HCP is self-monitoring twice a day for temperature and symptoms, and receiving temperature and symptoms checks at the beginning of each shift, and at least every 12 hours during a shift
      • HCP is wearing a facemask while working
      • HCP should be assigned to patients at lower risk for severe complications, where possible
      • HCP should maintain self-quarantine when not at work
      • If HCP develops symptoms consistent with COVID-19, they should immediately stop work, isolate at home, and be referred for diagnostic testing for COVID-19.
    • Special protocols for students enrolled in New York State health care education programs who reside out-of-state. Out-of-state students who are currently enrolled in a New York State health care education program are required to adhere to essential worker guidance upon their arrival to New York.
    • Special protocols for people traveling for a medical appointment or procedure. Anyone traveling to New York State for a health care procedure or appointment that cannot be postponed can maintain the appointment, but must otherwise remain quarantined. In addition, individuals and their companions must abide by the following conditions, as set forth in the DOH’s June 28, 2020 interim guidance, and additionally:
      • if the procedure is more than 5 days from arrival to New York, seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours) to ensure they are not positive;
      • monitor temperature and signs of symptoms, wear a face covering in public, maintain social distance;
      • avoid extended periods in public, contact with strangers, and large congregate settings, for 14 days.
    • Special protocols for Professional sports teams. Individuals traveling from restricted states to New York for a professional sports activity may travel to the extent necessary to participate in the professional sports activity, but must otherwise remain quarantined and avoid all public places and settings while in New York, consistent with the guidance for quarantine. In addition, as set forth in the DOH’s June 28, 2020 interim guidance, any player, coach, or staff otherwise associated with the professional sports team or league must:
      • Seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours) to ensure they are not positive;
      • monitor temperature and signs of symptoms, wear a face covering in public, maintain social distance, and clean and disinfect workspaces, equipment, and playing areas for a minimum of 14 days;
      • avoid extended periods in public, contact with strangers, and large congregate settings, for 14 days.
    • Travelers visiting New York State for less than 14 days. Those travelers must quarantine for the entire time of their stay in New York, and should complete the remainder of the 14-day quarantine period in their return to their home state.
    • The travel advisory is not retroactive. If travelers arrived in New York from a restricted state prior to June 25, 2020, they do not need to quarantine.
    • Costs of quarantine and lost wages. Travelers are responsible for their own expenses during quarantine.
    • Clinical Testing. Obtaining a negative COVID-19 diagnostic test does not mean an individual traveling to New York from a restricted state may come out of quarantine, as symptoms may appear as late as 14 days after exposure. The full 14 day quarantine is still required.
    • Law Enforcement. The travel advisory does not direct law enforcement to stop people solely due to an out-of-state license plate.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On May 17, 2020, the New York State Department of Health (“DOH”) and New York State Department of Labor (“DOL”) jointly issued guidance on the use of New York’s COVID-19 sick leave for health care employers of health care employees, as detailed in our previous Client Alert.  On June 25, 2020, the agencies jointly issued the following supplemental guidance on the application of New York’s COVID-19 sick leave for health care employees: 

1. The definition of “health care employee” includes a person employed at a doctor’s office, hospital, long-term care facility, outpatient clinic, nursing home, end stage renal disease facility, post-secondary educational institution offering health care instruction, medical school, local health department or agency, assisted living residence, adult care facility, residence for people with developmental disabilities, home health provider, emergency medical services agency, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, including permanent or temporary where medical services are provided that are similar to such institutions.

2.  A health care employee who returns to work after completing a period of mandatory quarantine or isolation and who subsequently receives a positive diagnostic test result for COVID-19 is deemed to be subject to a second mandatory order of isolation from the Department of Health and is entitled to sick leave under the New York COVID-19 sick leave law for the second isolation period.  The health care employee must submit documentation of a positive test result, unless the health care employee’s employer administered the test. 

3.  A health care employee who is subject to an order of quarantine or isolation but continues to test positive for COVID-19 after the end of the quarantine or isolation period  is also deemed to be subject to a second mandatory order of isolation from the Department of Health and is entitled to sick leave under the New York COVID-19 sick leave law for the second isolation period.   Again, the health care employee must submit documentation of a positive test result, unless the health care employee’s employer administered the test.

4. However, health care employees may not qualify for sick leave under New York’s COVID-19 sick leave law for more than three orders of quarantine or isolation.  Moreover, the second and third orders must be based on a positive COVID-19 test. 

Takeaway for Employers

This new guidance clarifies that health care employees may be eligible for sick leave under New York COVID-19 sick leave law for up to three orders of quarantine or isolation based on positive COVID-19 test results. 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

According to the Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York (the “Guidance”) issued by the New York State Department of Health (“DOH”) on June 24, 2020, healthcare workers, and other essential workers, are exempt from the quarantine restrictions on travelers from designated states. However, healthcare workers traveling from designated states are subject to certain conditions as well as the DOH’s other protocol for individuals who have contracted or been exposed to COVID-19.

Conditions For Healthcare Workers under the Travel Advisory

A healthcare worker traveling to New York from designated states is subject to certain conditions depending on the duration of time the worker spent in a designated state and the duration of time the worker intends to spend in New York.

Healthcare workers traveling from a designated state to New York for a period of less than 12 hours must:

  • stay in their vehicle and/or limit personal exposure by avoiding public spaces;
  • avoid extended periods of time in public, contact with strangers, and large congregate settings, to the extent possible;
  • monitor their temperature and for symptoms of COVID-19;
  • wear a face covering when in public;
  • maintain social distance of at least six feet; and
  • clean and disinfect workspaces.

Healthcare workers traveling from a designated state to New York for a period of less than 36 hours, but requiring an overnight stay in New York, are required to:

  • avoid extended periods in public, contact with strangers, and large congregate settings, to the extent possible;
  • monitor their temperature and for symptoms of COVID-19;
  • wear a face covering when in public;
  • maintain social distance of at least six feet; and
  • clean and disinfect workspaces.

Healthcare workers traveling to New York for a period of greater than 36 hours must:

  • avoid extended periods in public, contact with strangers, and large congregate settings, to the extent possible, for at least 7 days;
  • monitor their temperature and for symptoms of COVID-19, wear a face covering when in public, maintain social distancing, and clean and disinfect workspaces for at least 14 days; and
  • seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours).

Return-to-Work Protocols for Healthcare Workers

In addition to the Travel Advisory Conditions, healthcare workers must meet certain criteria after having been exposed to a confirmed or suspected case of COVID-19 or having a confirmed or suspected COVID-19 infection.

According to the Protocols for Essential Personnel to Return to Work Following COVID-19 Exposure or Infection updated by the DOH on March 31, 2020, a healthcare worker who has been exposed to a confirmed or suspected case of COVID-19 may only permitted to work in the workplace if all of the following conditions are satisfied:

  • Working from home would not be feasible for the healthcare worker’s job duties;
  • The healthcare worker is asymptomatic;
  • The healthcare worker quarantines when not at work;
  • The healthcare worker undergoes temperature monitoring and symptom checks upon arrival to work and at least every 12 hours while at work, and self-monitors twice a day when at home;
  • The healthcare worker wears a facemask when required to interact with individuals within 6 feet for 14 days following the last exposure;
  • Environmental controls are implemented to permit a separation of greater than six feet where the healthcare worker’s job duties permit;
  • The healthcare worker immediately stops working and isolated at home if he or she develops symptoms consistent with COVID-19 (e.g., fever, cough, or shortness of breath); and
  • Testing is prioritized for healthcare workers with symptoms.

Additionally, a healthcare worker is a confirmed or suspected COVID-19 infection may only be permitted to work in the workplace if all of the following conditions are met:

  • Working from home would adversely impact essential services or functions, including critical public health and public works infrastructure in New York or the response to the COVID-19 public health emergency;
  • The healthcare worker has maintained isolation for at least 7 days after COVID-19 symptoms first appeared;
  • The healthcare worker has not had a fever for at least 72 hours, without the use of fever-reducing medications, and his/her other symptoms are improving;
  • The healthcare worker who is recovering from COVID-19 and returns to work wears a facemask for 14 days following onset of symptoms.

Takeaway For Employers

Healthcare workers are not subject to the general quarantine requirements of the Travel Advisory, but they must follow the applicable conditions when traveling to New York from a designated state. Healthcare employers should require employees who travel from designated states to abide by the Travel Advisory conditions and should follow the DOH’s Protocol for healthcare workers who are exposed to a confirmed or suspected case of COVID-19 or are confirmed or suspected of having a COVID-19 infection.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On June 24, 2020, New York Governor Cuomo, in conjunction with New Jersey Governor Murphy and Connecticut Governor Lamont, issued Executive Order No. 205 mandating quarantine restrictions on certain travelers arriving in New York State (the “Travel Advisory”). The Travel Advisory became effective on June 25, 2020.

The Mandatory Quarantine Requirement for Certain Travelers

The Travel Advisory requires any person entering New York from a state with either

  • a positive test rate for COVID-19 higher than 10 per 100,000 residents over a 7-day rolling average, or
  • a state with a 10% or higher positivity rate over a 7-day rolling average

to quarantine for a period of 14 days according to the New York Department of Health’s quarantine regulations.

Travelers from the following states are currently subject to the Travel Advisory: Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, and Utah.

Exemption for Essential Workers

Essential workers are exempt from the quarantine requirements of the Travel Advisory. However, they are subject to other the terms and conditions based on:

  • the duration of time the individual spent in a designated state, and
  • the duration of time the individual intends to spend in New York.

An essential worker is:

  • any individual employed by any entity identified on the Empire State Development Essential Business List;
  • any individual who is employed as a health care worker, first responder, or in any position within a nursing home, long-term care facility, or other congregate care setting;
  • any individual who is employed as an essential employee and directly interacts with the public while working, pursuant to the New York Department of Health’s (“DOH”) May 31, 2020 Protocol for COVID-19 Testing; or
  • any other worker deemed essential by the New York Commissioner of Health.

Importantly, in addition to following the requirements of the Travel Advisory, employers and their essential workers are expected to comply with previously issued DOH guidance regarding an employee’s return to work after a suspected or confirmed case of COVID-19 or after an employee had close or proximate contact with a person with COVID-19.

Short Duration Travel to New York

This category applies to essential workers traveling to New York for a period of less than 12 hours and includes, but is not limited to, individuals passing through New York, delivering goods, and awaiting flight layovers. Essential workers in this category are required to:

  • stay in their vehicle and/or limit personal exposure by avoiding public spaces;
  • avoid extended periods of time in public, contact with strangers, and large congregate settings to the extent possible;
  • monitor their temperature and for symptoms of COVID-19;
  • wear a face covering when in public;
  • maintain social distance of at least six feet; and
  • clean and disinfect workspaces.

Medium Duration Travel To New York

This category applies to essential workers traveling to New York for a period of less than 36 hours, but requiring an overnight stay in New York, and includes, but is not limited to, individuals who are delivering multiple goods in New York and awaiting longer flight layover. Essential workers in this category are required to:

  • avoid extended periods in public, contact with strangers, and large congregate settings, to the extent possible;
  • monitor their temperature and for symptoms of COVID-19;
  • wear a face covering when in public;
  • maintain social distance of at least six feet; and
  • clean and disinfect workspaces.

Long Duration Travel to New York

This category applies to essential workers traveling to New York for a period of greater than 36 hours and includes, but is not limited to, individuals working on longer projects and fulfilling extended employment obligations. Essential workers in this category must:

  • avoid extended periods in public, contact with strangers, and large congregate settings, to the extent possible, for at least 7 days;
  • monitor their temperature and for symptoms of COVID-19, wear a face covering when in public, maintain social distancing, and clean and disinfect workspaces for at least 14 days; and
  • seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours).

Exemption for Pass-Through Travelers

According to the DOH, the quarantine requirements of the Travel Advisory “do not apply to any individual passing through designated states for a limited duration (i.e., less than 24 hours) through the course of travel.” This includes individuals who briefly use rest stops or experience layovers in designated states when traveling by vehicle, bus, train, or airplane.

Exemption for Other Travelers

In addition to the exemptions listed above, the New York Commissioner of Health may grant an exemption to the Travel Advisory for other individuals based upon extraordinary circumstances. This exemption will not require the individual to quarantine, but may impose other terms and conditions on the individual to protect public health.

Takeaway For Employers

The Travel Advisory imposes additional restrictions on individuals who travel to New York from designated states. Employers should remain informed of which states the DOH designates as subject to the Travel Advisory. Employers also should require employees who travel from designated states to abide by the Travel Advisory quarantine requirements or other conditions as well as any other COVID-19 related return-to-work mandates.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On June 24, 2020, New York Governor Cuomo, in conjunction with New Jersey Governor Murphy and Connecticut Governor Lamont, issued Executive Order No. 205 mandating quarantine restrictions on certain travelers arriving in New York State (the “Travel Advisory”). The Travel Advisory became effective on June 25, 2020.

The Mandatory Quarantine Requirement for Certain Travelers

The Travel Advisory requires any person entering New York from a state with either

  • a positive test rate for COVID-19 higher than 10 per 100,000 residents over a 7-day rolling average, or
  • a state with a 10% or higher positivity rate over a 7-day rolling average

to quarantine for a period of 14 days according to the New York Department of Health’s quarantine regulations.

Travelers from the following states are currently subject to the Travel Advisory: Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, and Utah.

Exemption for Essential Workers

Essential workers are exempt from the quarantine requirements of the Travel Advisory. However, they are subject to other the terms and conditions based on:

  • the duration of time the individual spent in a designated state, and
  • the duration of time the individual intends to spend in New York.

An essential worker is:

  • any individual employed by any entity identified on the Empire State Development Essential Business List;
  • any individual who is employed as a health care worker, first responder, or in any position within a nursing home, long-term care facility, or other congregate care setting;
  • any individual who is employed as an essential employee and directly interacts with the public while working, pursuant to the New York Department of Health’s (“DOH”) May 31, 2020 Protocol for COVID-19 Testing; or
  • any other worker deemed essential by the New York Commissioner of Health.

Importantly, in addition to following the requirements of the Travel Advisory, employers and their essential workers are expected to comply with previously issued DOH guidance regarding an employee’s return to work after a suspected or confirmed case of COVID-19 or after an employee had close or proximate contact with a person with COVID-19.

Short Duration Travel to New York

This category applies to essential workers traveling to New York for a period of less than 12 hours and includes, but is not limited to, individuals passing through New York, delivering goods, and awaiting flight layovers. Essential workers in this category are required to:

  • stay in their vehicle and/or limit personal exposure by avoiding public spaces;
  • avoid extended periods of time in public, contact with strangers, and large congregate settings to the extent possible;
  • monitor their temperature and for symptoms of COVID-19;
  • wear a face covering when in public;
  • maintain social distance of at least six feet; and
  • clean and disinfect workspaces.

Medium Duration Travel To New York

This category applies to essential workers traveling to New York for a period of less than 36 hours, but requiring an overnight stay in New York, and includes, but is not limited to, individuals who are delivering multiple goods in New York and awaiting longer flight layover. Essential workers in this category are required to:

  • avoid extended periods in public, contact with strangers, and large congregate settings, to the extent possible;
  • monitor their temperature and for symptoms of COVID-19;
  • wear a face covering when in public;
  • maintain social distance of at least six feet; and
  • clean and disinfect workspaces.

Long Duration Travel to New York

This category applies to essential workers traveling to New York for a period of greater than 36 hours and includes, but is not limited to, individuals working on longer projects and fulfilling extended employment obligations. Essential workers in this category must:

  • avoid extended periods in public, contact with strangers, and large congregate settings, to the extent possible, for at least 7 days;
  • monitor their temperature and for symptoms of COVID-19, wear a face covering when in public, maintain social distancing, and clean and disinfect workspaces for at least 14 days; and
  • seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours).

Exemption for Pass-Through Travelers

According to the DOH, the quarantine requirements of the Travel Advisory “do not apply to any individual passing through designated states for a limited duration (i.e., less than 24 hours) through the course of travel.” This includes individuals who briefly use rest stops or experience layovers in designated states when traveling by vehicle, bus, train, or airplane.

Exemption for Other Travelers

In addition to the exemptions listed above, the New York Commissioner of Health may grant an exemption to the Travel Advisory for other individuals based upon extraordinary circumstances. This exemption will not require the individual to quarantine, but may impose other terms and conditions on the individual to protect public health.

Takeaway For Employers

The Travel Advisory imposes additional restrictions on individuals who travel to New York from designated states. Employers should remain informed of which states the DOH designates as subject to the Travel Advisory. Employers also should require employees who travel from designated states to abide by the Travel Advisory quarantine requirements or other conditions as well as any other COVID-19 related return-to-work mandates.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On June 18, 2020, the U.S. Department of Labor’s (“DOL”) Occupational Safety and Health Administration (“OSHA”) issued guidance to assist employers and workers in safely returning to work and reopening businesses deemed “non-essential” during the COVID-19 pandemic. The guidance is intended to supplement the U.S. DOL and Department of Health and Human Services’ previously issued Guidance on Preparing Workplaces for COVID-19, and the White House’s Guidelines for Opening Up America Again. Moreover, reopening should align with the lifting of stay-at-home orders, as well as public health recommendations from the Center for Disease Control and Prevention (“CDC”) and other federal requirements or guidelines.

PLANNING FOR REOPENING

During all phases of reopening, employers should implement strategies for basic hygiene, including hand hygiene, cleaning and disinfecting, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training. In general, during:

  • Phase 1: Businesses should consider making telework available, if feasible, limit the number of people in the workplace in order to maintain social distancing practices, limit non-esssential business travel, and consider accommodations for workers at higher risk of severe illness and special accommodations with workers with household members at higher risk of severe illness.
  •  Phase 2: Businesses should continue making telework available, and continue to accommodate vulnerable workers. However, limitations on the number of people in the workplace can be eased while still maintaining moderate to strict social distancing practices, and non-essential travel can resume.
  •  Phase 3: Businesses resume unrestricted staffing of work sites.

For all phases of reopening, employers should develop and implement policies and procedures that address preventing, monitoring for, and responding to any emergency or resurgence of COVID-19 in the workplace and community. Based on evolving conditions, employer’s reopening plans should address:

  • Hazard assessment, including practices to determine likely sources of exposure to the virus by workers in the course of their duties. Examples include assessing job tasks, and considering potential exposure from coworkers, customers and visitors.
  • Hygiene, including practices for hand hygiene, respiratory etiquette, cleaning and disinfection. Examples include providing products for hand washing and hand sanitizing, encouraging frequent and proper handwashing, identifying high-traffic areas and targeting them for enhanced cleaning and disinfection using EPA-registered disinfectants, and adhering to CDC guidance for controlling the spread of the virus.
  • Social distancing, including practices for maximizing distance between all people. Examples include limiting business occupancy, placing demarcations on floors, posting reminders on signs, post directional signs in hallways and corridors.
  • Identification and isolation of sick employees, including practices for worker self-monitoring or screening and excluding employees with COVI-19 symptoms from the workplace. Examples include asking employees to self-screen before coming to work, and stay home if sick, and establishing protocols for managing people who become ill in the workplace, and cleaning and disinfecting exposed spaces.
  • Return to work after illness or exposure. Examples include following CDC guidance for discontinuing self-isolation, and ensuring that workers who have been exposed to someone with COVID-19 routinely monitor themselves in accordance with CDC guidance.
  • Controls, including engineering controls (e.g., physical barriers and enhanced ventilation), administrative controls and safe work practices (e.g., staggering work shifts, limiting breakroom capacity, practicing social distancing, eliminating in-person meetings, ensuring use of face coverings), and providing and ensuring workers us personal protective equipment (“PPE”).
  • Workplace Flexibilities. Examples include evaluating existing policies and consider including policies for teleworking, sick leave and other types of leave to minimize workers’ exposure to risks, and communicate the options to workers.
  • Training, including on the signs, symptoms, and risk factors associated with COVID-19, source of exposure, and prevention of spread in the workplace. Examples include training workers about the risk of exposure to COVID-19 and how they can protect themselves, and training on the policies on wearing face coverings in the workplace, and how to put on and take off PPE.
  • Anti-retaliation, including practices for ensuring that no adverse or retaliatory action is taken against an employee who adheres to these guidelines or raises workplace safety and health concerns. Examples include ensuring workers understand their right to a safe and healthful work environment, right to raise workplace safety and health concerns and seek an OSHA inspection, and prohibitions against retaliation for raising workplace safety and health concerns, identifying a contact person for questions or concerns about workplace safety and health, and ensuring supervisors are familiar with workplace flexibilities, human resource policies and procedures, and workers’ rights in general.

The examples provided are non-exhaustive, nor do they apply to every employer. Employers are urged to refer to the Guidance on Preparing Workplaces for COVID-19 and the OSHA COVID-19 webpage for additional recommendations for addressing and implementing these guiding principles.

APPLICABLE OSHA STANDARDS AND REQUIRED PROTECTIONS IN THE WORKPLACE

All of OSHA’s standards that apply to protecting workers from infection remain in place as employers and workers return to the workplace. While covered employer are always responsible for complying with all applicable OSHA requirements, the agency’s standards may be especially relevant for preventing the spread of COVID-19 including standards for PPE (29 CFR 1910.132), respiratory protection (29 CFR 1910.134), and sanitation (29 CFR 1910.141).

While there is no OSHA standard that is specific to the COVID-19 virus, employers are responsible for providing a safe and healthful workplace that is free from serious recognized hazards under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (“OSH”) Act of 1970. Appendix A of the guidance outlines some of OSHA’s general industry rules applicable to protecting workers from occupational exposure to COVID-19.

RESPONSES TO FREQUENTLY ASKED QUESTIONS

Employers may conduct work site COVID-19 testing. Consistent with EEOC and CDC guidance, OSHA’s guidance confirms that neither the OSH Act nor OSHA standards prohibit employer testing for COVID-19, if applied in a transparent manner applicable to all employees.

Employers may conduct work site temperature checks and other health screening. Similarly, consistent with EEOC and CDC guidance, OSHA’s guidance confirms that neither the OSH Act nor OSHA standards prohibit employer screening for COVID-10, including conducting daily in-person or virtual health checks, if applied in a transparent manner applicable to all employees. Any such screening should consider ways to maintain confidentiality, as required by the Americans with Disabilities Act (“ADA”).

Employers must follow OSHA requirements when conducting health screening, temperature checking or COVID-19 testing. According to OSHA’s guidance, if an employer implements health screening or temperature checks and chooses to create records of this information, those records might qualify as “employee medical records” under the Access to Employee Exposure and Medical Records standard, and the employer would be required to retain those records for the duration of each worker’s employment plus 30 years, and follow confidentiality requirements (29 CFR 1019.1020). However, temperature records do not qualify as medical records under the Access to Employee Exposure and Medical Records standard unless they are made or maintained by a physician, nurse or other health care personnel or technician. Moreover, the OSHA guidance clarifies that records do not need to be retained if employers do not make a record of the temperature checks, but instead acknowledge a temperature reading in real-time.   Under the EEOC’s guidance, employers are permitted to maintain a log of temperature check results, but does not specify any mandatory document retention period. Additionally individuals administering health screening, temperature checks or COVID-19 tests must be protected from exposure to the virus.

Employers must follow OSHA requirements regarding PPE. Employers must conduct a hazard assessment in accordance with OSHA’s PPE standard, if applicable, to determine the PPE requirements for their unique work site (29 CFR 1910.132). Employers subject to this standard must determine if PPE is necessary for employees to work safely after considering whether engineering and administrative controls and safe work practices can effectively mitigate identified hazards. Employers should consider modifying worker interactions in order to reduce the need for PPE. If PPE is necessary to protect workers from exposure to COVID-19 during particular tasks, employers should consider delaying those tasks until the risk subsides, or utilizing alternative means to accomplish the task. If PPE is needed but unavailable, and no alternatives means are available, the work tasks must be discontinued. Face coverings are not PPE, but can be worn to reduce the spread of the virus to others. Employers may consider requiring cloth face coverings to be worn in the workplace as an administrative control.

Employers should consult the EEOC guidance on other labor, disability and employment laws when conducting health screening. OSHA’s guidance encourages employers to review the EEOC’s guidance on health screening, workplace policies and return to work plans to avoid violating labor, disability and employment laws associated with health screening and medical issues related to COVID-19.

Employers should review the CDC’s guidance on return to work after exposure to COVID-19. OSHA’s guidance also refers employers to the CDC guidance on discontinuation of isolation for people with COVID-19 who are not in the healthcare settings.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.