On March 19, 2020, Governor Andrew Cuomo signed Executive Order 202.7 mandating that all non-essential businesses reduce their in-person workforce by 75% by March 21, 2020 at 8:00 p.m. Due to the rapid rise of COVID-19 cases in New York, on March 20, 2020, Governor Cuomo announced an adjustment to that mandate to 100% of non-essential businesses. The mandate, which is called “Pause,” requires that all non-essential workers stay home, except in certain critical sectors needed to ensure the health and welfare of New Yorkers. The Pause mandate is to go into effect Sunday evening.

While the list of sectors that that are exempt from the Pause mandate will be provided later in the day, the Governor stated that New York will follow the federal guidelines. The federal critical infrastructure sectors identified by the Cybersecurity and Infrastructure Security Agency (“CISA”) during COVID-19 are limited to the following sectors:

  1. Chemical
  2. Commercial Facilities
  3. Communications
  4. Critical Manufacturing
  5. Dams
  6. Defense Industrial Base
  7. Emergency Services
  8. Energy
  9. Financial Services
  10. Food and Agriculture
  11. Government Facilities
  12. Healthcare and Public Health
  13. Information Technology
  14. Nuclear Reactors, Materials, and Waste
  15. Transportation Systems
  16. Water and Wastewater Systems

Accordingly, it would appear that only businesses directly involved in providing services within the sixteen critical sectors, or necessary to continue the supply chain to these sectors, would be excluded from the Pause Order. These would include among other things, hospitals, public transportation, gas stations, pharmacies, grocery stores, food banks, and restaurants that offer take-out and delivery service.

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Putney, Twombly, Hall & Hirson LLP

In further response to the Coronavirus or COVID-19, on March 18, 2020, Governor Andrew Cuomo signed Executive Order 202.6, mandating that all non-essential businesses reduce their in-person workforce by 50% by March 20, 2020 at 8:00 p.m.

On March 19, 2020, Governor Cuomo announced an adjustment to that mandate, increasing the reduction to 75% in order to keep more workers home. The Executive Order provides the following:

  • Effective March 20, 2020 at 8:00 p.m., all businesses and not-for-profit entities in New York must utilize, to the maximum extent possible, telecommuting or work from home procedures;
  • By no later than March 20, 2020 at 8:00 p.m., employers must reduce their in-person workforce at any location by 50% (expected to be 75%), with the exception of essential businesses.
  • Essential businesses, which are not subject to the restrictions, include:
    • Essential health care operations (i.e., research and laboratory services)
    • Essential infrastructure (i.e., utilities, telecommunication, airports and transportation infrastructure)
    • Essential manufacturing (i.e., food processing, pharmaceuticals)
    • Essential retail (i.e., grocery stores, pharmacies)
    • Essential services (i.e., trash collection, mail, shipping services)
    • News media
    • Banks and related financial institutions
    • Providers of basic necessities to economically disadvantaged populations
    • Construction
    • Vendors of essential services necessary to maintain safety, sanitation and essential operations of residences and essential business
    • Vendors of essential services that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public
  • Other businesses deemed essential after requesting an opinion from the Empire State Development Corporation.

The Empire State Development Corporation will make such determinations by March 19, 2020 at 5:00 p.m.

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

Putney, Twombly, Hall & Hirson LLP

On March 13, 2020, President Donald Trump declared the Coronavirus Disease 2019 (“COVID-19” or “Coronavirus”) pandemic a national emergency in order to allocate up to $50 billion to respond to the outbreak. On March 18, 2020, the Administration also agreed to a relief package that would allocate tens of billions of dollars to sick leave, unemployment insurance, food stamps and other measures to address the crisis.  The new federal measures are known collectively as the “Families First Coronavirus Response Act” (“FFCRA”).  The FFCRA is effective fifteen days (15) from enactment, or April 2, 2020..

In addition, on March 15, 2020, Mayor Bill de Blasio announced the closure of New York City’s public school system, and Governor Andrew Cuomo announced similar closures for all New York public schools.  On March 18, 2020, New York passed its own emergency paid sick leave law, which is effective immediately.

I. New York State Response: Paid Family Leave and Temporary Disability Insurance Benefits

While the federal law still excludes many workers from coverage, Governor Cuomo signed a new emergency paid sick leave package that guarantees at least two weeks of paid sick leave and job protection during a quarantine order for all public employees and employees of businesses employing 100 or more people.  Employers of 11 to 99 employees, or employers of 10 or fewer employees with net income of more than $1 million, must provide at least five (5) days paid sick leave and job security during a mandatory quarantine order, along with access to paid family leave and disability benefits during the isolation period.  Businesses with 10 or fewer employees and a net income of less than $1 million must provide job protection and access to paid family leave and disability benefits to affected workers.  The Act provides for the following:

A. Emergency Paid Sick Leave Due to COVID-19

  • Applies to those subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any government entity authorized to issue such order due to COVID-19.
  • Does not apply to those who returned from travel to level two or three countries for non-work-related travel.
  • Employers with 10 or fewer employees (with net income less than $1 million in the previous tax year):
    • must provide employees with unpaid sick leave for the duration of any mandatory or precautionary order of quarantine or isolation.
    • thereafter, employees are eligible for paid family leave benefits and disability benefits under the Act.
  • Employers with 10 or fewer employees (with net income more than $1 million in the previous tax year):
    • must provide employees with at least five (5) days of paid sick leave during a mandatory or precautionary order of quarantine or isolation,
    • must provide employees with unpaid sick leave for the duration of the mandatory or precautionary order of quarantine or isolation.
    • after the five days of paid sick leave, employees are eligible for paid family leave benefits and disability benefits under the Act.
  • Employers with 11 to 99 employees:
    • must provide employees subject to a mandatory or precautionary order of quarantine or isolation with at least five (5) days of paid sick leave.
    • must provide employees with unpaid sick leave for the duration of the mandatory or precautionary order of quarantine or isolation.
    • after the five days of paid sick leave, employees are eligible for any paid family leave benefits and disability benefits under the Act.
  • Employers with 100 or more employees:
    • Must provide employees subject to a mandatory or precautionary order of quarantine or isolation with at least fourteen (14) days of paid sick leave.
  • Public employers:
    • Must provide employees and officers subject to mandatory or precautionary order of quarantine or isolation with at least (14) days of paid sick leave.
  • Employees must be compensated at their regular rate of pay for hours they would have regularly worked.
  • Nothing in the Act should infringe upon an employee’s rights under any law, rule or collectively bargained agreement, or benefits accrued through a collectively bargained agreement.
  • Employees must be returned to the same position following leave.
  • Retaliation for taking leave is prohibited.

 

B. Disability and Family Leave Benefits Due to COVID-19

  • “Disability” under the Act means inability to work as a result of a mandatory or precautionary order of quarantine or isolation.
  • Does not apply to employees who are asymptomatic or not yet diagnosed with any medical condition and is physically able to work while under mandatory or precautionary order of quarantine or isolation.
  • Disability benefits are available on the first day of disability.
  • “Family leave” under the Act means leave taken for the following:
    • the employee is subject to a mandatory or precautionary order of quarantine or isolation; or
    • to provide care for a minor dependent child who is subject to a mandatory or precautionary order of quarantine or isolation.
  • Benefits may be payable concurrently to an eligible employee upon the first day of mandatory or precautionary order of quarantine or isolation.
    • However, an employee may not collect benefits that would exceed $840.70 in paid family leave benefits and $2,043.92 in disability benefits per week.

The law also provides that if the federal government provides sick leave and/or employee benefits by law or regulation related to COVID-19, then the sick leave, family leave and disability benefits in this Act will not be available.  However, if the provisions in this Act would provide greater benefits, then employees shall be able to claim the difference of the additional sick leave and/or employee benefits available under the Act.

The Act is to take effect immediately.

II. Federal Response: Families First Coronavirus Response Act:

In order to stop the spread of the Coronavirus, the FFCRA provides for free testing for everyone who needs a test, including the uninsured.  In addition, the FFCRA provides for additional measures to put families first, including paid emergency leave, with ten (10) days of paid sick leave, and up to three months of paid family and medical leave, as well as enhanced unemployment insurance.  It also provides for enhanced food programs for children and seniors, and increased funds for Medicaid.  The leave provisions are contained in the “Emergency Paid Leave Act of 2020” and the “Paid Sick Days for Public Health Emergencies and Personal and Family Care Act.”

However, those benefits only apply to employees of businesses with fewer than 500 employees, or the government, who are infected by the virus, quarantined, have a sick family member or are affected by school closings.  For companies with fewer than 50 employees, the Labor Department will have the option of exempting their workers if it determines that providing paid leave “would jeopardize the viability of the business as a going concern.”  It also excludes “certain health care providers and emergency responders” from the benefits.

A. Emergency Family and Medical Leave Expansion Act

Currently there is no federal requirement for employers to provide paid sick leave. The Family and Medical Leave Act (“FMLA”) only provides for up to twelve (12) weeks of unpaid leave for certain medical situations for the employee or the employee’s immediate family member, or up to 26 weeks for a covered service member.

The new legislation amends the FMLA, by adding Section 102(a)(1)(F), known as the “Emergency Family and Medical Leave Expansion Act,” which provides for public health emergency leave, as follows:

Eligibility:

  • A public health emergency is an emergency with respect to COVID-19, declared by a federal, state or local authority.
  • Qualifying reason to take leave under this section for a public emergency is limited to employees unable to work (or telework), to care for a son or daughter under 18 years if the school has been closed or the child care provider is unavailable due to a public health emergency.
  • Excludes days that an individual receives pay from employer (regular wages, sick pay, or other paid time off).
  • Applies to employees who were working 30 days prior to being impacted by the Coronavirus.

Exclusions

  • Excludes employers with greater than 500 employees.
  • The Secretary of Labor may exclude employers with fewer than 50 employees, if the requirements would jeopardize the viability of the business as a going concern.
  • An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employees.
  • The Secretary of Labor may exclude certain health care providers and emergency responders as eligible employees.

Benefit

  • Provides that the first 10 days of leave under Section 102(a)(1)(F) may be unpaid;
    • However, an employee may elect to substitute accrued vacation leave, personal leave or medical or sick leave for unpaid leave under Section 102(a)(1)(F).
  • An employer must provide paid leave for each day after the first 10 days.
  • The compensation paid to employees must not be less than two-thirds of the employee’s regular rate (as determined by section 7(e) of the FLSA),
    • The number of hours is determined by the hours the employee is normally scheduled to work;
    • If on a flexible schedule, the average number of hours is determined by the average hours the employee was scheduled per day over a 6-month period
  • The benefit is capped at $200 per day, or $10,000 total.

Application

  • The employee must provide the employer with such notice of leave as is “practicable.”
  • The employer must be restored to his/her position upon return from leave
    • Exception for employers with fewer than 25 employees, if the employee takes leave under Section 102(a)(1)(F), and the position no longer exists due to economic conditions caused by the public health emergency, and reasonable efforts were made to restore the employee to an equivalent position.
  • Employers who are signatory to multi-employer collective bargaining agreements (“CBA”) may, consistent with their CBAs, make contributions to a multiemployer fund or plan based on the hours of paid sick time each employee is entitled to under the Act; employees may secure pay from such fund or plan.
  • The Act takes effect 15 days after the date of enactment.

B. Emergency Paid Sick Leave Act

The FFCRA also includes a section known as the “Emergency Paid Sick Leave Act,” which provides for the following:

Eligibility:

  • Applies to private employers who employ fewer than 500 employees.
  • Applies to public agencies or entities employing 1 or more employees, but certain employers with fewer than 50 employees can be exempt.
  • Paid sick time is provided to an employee who is unable to work (or telework) for the following qualifying reasons:
    1. the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
    2. the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
    3. the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    4. the employee is caring for an individual who is subject to an order of quarantine or isolation or is has been advised to self-quarantine;
    5. the employee is caring for a son or daughter whose school has closed or child care provider is unavailable due to COVID-19 precautions; or
    6. the employee is experiencing any other substantially similar symptoms.
      • However, employers may exclude health care providers and emergency responders from this requirement.
  • Employees are eligible for paid sick leave immediately, regardless of length of employment.
  • Employers cannot require that employees search for a replacement to cover their hours in order to receive paid sick time under the Act.

Exclusions

  • Excludes employers with greater than 500 employees.
  • The Secretary of Labor may exclude employers with fewer than 50 employees, if the requirements would jeopardize the viability of the business as a going concern.
  • The Secretary of Labor may exclude certain health care providers and emergency responders as eligible employees by allowing the employer to opt out.
  • An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employees.

Benefit

  • Full-time employees are entitled to 80 hours of paid sick time.
  • Part-time employees are entitled to paid sick time determined by the average number of hours worked over a 2-week period.
  • The employee must be compensated at the greater of the employee’s regular rate of pay, or the minimum wage.
    • However, for employees who are caring for a family member who is in isolation or experiencing symptoms, or who are caring for a child due to the closure of a school or child care facility, the employee will be paid two-thirds of the amount.
  • The benefit is capped at $511 per day or $5,110 total for leave under the first three reason – the employee’s own condition.
    • However, the benefit is capped at $200 per day or $2,000 total for the care of others.
  • The number of hours is determined by the hours the employee is normally scheduled to work.
    • If on a flexible schedule, the average number of hours is determined by the average hours the employee was scheduled per day over a 6-month period.
  • Employees may not carryover unused sick pay to the following year.
  • Employees may first use paid sick time available under the Act.
  • However, employers may not require employees to use other paid leave first before using paid sick leave under the Act.
  • Employers need not pay employees for unused paid sick time upon separation.

Application

  • The employee must provide the employer with “reasonable” notice of taking leave.
  • Employers must post notice of this Act in a conspicuous place, a model of which will be provided by the Secretary of Labor within 7 days of the enactment of the Act.
  • Protects against prohibited acts of discharging, disciplining, or discriminating against an employee who takes leave in accordance with the Act, or has filed a complaint related to the Act.
  • Employers who fail to provide paid sick leave under the Act are considered to have violated the minimum wage provisions of section 6 the FLSA, and are subject to penalties.
  • Employers who willfully engage in prohibited acts will be considered to be in violation of section 15(a)(3) of the FLSA, and are subject to penalties.
  • Employers who are signatory to multi-employer collective bargaining agreements (“CBA”) may, consistent with their CBAs, make contributions to a multiemployer fund or plan based on the hours of paid sick time each employee is entitled to under the Act; employees may secure pay from such fund or plan.
  • Nothing in the Act should diminish the rights or benefits an employee is entitled to under any law, collectively bargained agreement, or existing employer policy.
  • The Act takes effect 15 days after the date of enactment.
  • The Act expires on December 31, 2020.

III. Other Relevant Leave Laws:

In addition to the new laws, New York employers must also comply with all relevant federal, state and local laws and rules concerning sick leave, including the following summarized below.

A. Family and Medical Leave Act

The FMLA allows eligible employees to take up to twelve (12) weeks of job-protected unpaid leave for certain family and medical reasons, or up to twenty-six (26) weeks of unpaid leave to care for a covered service member. The following is an overview of leave under the FMLA:

  • Applies to private employers with 50 or more employees;
  • Applies to public employees regardless of number of employees;
  • Provides for twelve (12) weeks of unpaid leave in a twelve-month period;
  • Eligible after 1,250 hours worked during a twelve-month period;
  • Can be used for the serious health condition of the employee;
  • Can be used for the serious health condition of the employee’s family member;
  • Provides for twenty-six (26) weeks of unpaid leave in a twelve-month period to care for a covered service member with a serious injury or illness;
  • Employers can require employees to use accrued paid vacation leave, sick time or family leave while on FMLA leave
  • Protects against prohibited acts of interfering with FMLA rights, or discharging or discriminating against employees who exercises their rights under the FMLA.

B. New York Paid Family Benefits Law

Prior to recent legislation, New York State did not require private employers to offer paid sick leave.  Instead, under New York’s Paid Family Benefits Law, private employers with at least one employee are required to provide up to ten (10) weeks of job-protected paid family leave (“PFL”) to care for a family member with a serious health condition.  However, it cannot be used for an employee’s own serious health condition. If eligible, the employee can receive wage replacement benefits of 60% of the employee’s average weekly wage, up to the maximum of 60% of the current statewide average weekly wage of $1,401.17. The maximum weekly benefit for 2020 is $840.70. The following is an overview of leave under PFL:

  • Applies to private employers with one or more employee;
  • Public employers may opt in;
  • Eligible after 26 consecutive weeks of employment if regularly working 20 or more hours per week;
  • Eligible after 174 days worked if regularly working less than 20 hours per week;
  • Provides for up to ten (10) weeks of paid leave per year at up to 60% of benefits;
  • Can be used to care for a family member with a serious health condition;
  • Cannot be used for employee’s own serious health condition;
  • Employers cannot require employees to use paid time off while on PFL;
  • Protection against discrimination or retaliation for requesting or taking PFL.

C. New York City Earned Safe and Sick Time Act

Under New York City’s Earned Safe and Sick Time Act (“ESSTA”), employers with five (4) or more employees must allow employees who work at least 80 hours in a year in NYC with up to 40 hours a year of paid sick time.  Employers with one (1) to four (4) employees must allow employees who work at least 80 hours a year in NYC with up to 40 hours a year of unpaid sick leave.  Eligible employees can use accrued safe and sick leave for the care and treatment of themselves or a family member.  Note that if an employer provides employees time off for other purposes, such as vacation or personal leave, the employer does not have to provide additional time designated for safe and sick leave, if the employee can use that time off for safe and sick leave, and the employer’s policies otherwise meet the requirements for ESSTA.  The following is an overview of leave under the ESSTA:

  • For paid leave – applies to private and nonprofit employers with 5 or more employees who work 80 or more hours a calendar year in NYC;
  • For unpaid leave – applies to private and nonprofit employers with 1-4 employees who work 80 or more hours a calendar year in NYC;
  • Provides for up to 40 hours of sick leave per year, accrued at one hour for every thirty hours worked;
  • Applies to full and part time employees;
  • Eligible after 120 days of employment;
  • Can be used for the treatment of employee’s own health condition;
  • Can be used for the care or treatment of a family member;
  • Can be used for the closure of the employee’s workplace due to a public health emergency;
  • Can be used for an employee’s need to care for a child whose school or care facility is closed as a result of a declared public health emergency;
  • Protection against retaliation for use of earned sick leave.

D. Westchester County Earned Sick Leave Law

Similarly, Westchester County enacted the Westchester County Earned Sick Leave Law (“ESLL”), which requires employers with five (5) or more employees in Westchester to provide eligible employees with up to 40 hours of paid sick time per calendar year.  Employers with (1) to four (4) employees in Westchester must provide up to 40 hours of unpaid earned sick time.  The following is an overview of leave under the ESLL:

  • For paid leave – applies to private and nonprofit employers with 5 or more employees who work 80 or more hours a calendar year in Westchester;
  • For unpaid leave – applies to private and nonprofit employers with 1-4 employees who work 80 or more hours a calendar year in Westchester;
  • Provides for up to 40 hours of sick leave per year;
  • Applies to full and part time employees;
  • Eligible after 90 days of employment;
  • Can be used for the treatment of employee’s own health condition;
  • Can be used for the care or treatment of a family member;
  • Can be used for the closure of the employee’s workplace due to a public health emergency;
  • Can be used for an employee’s need to care for a child whose school or care facility is closed as a result of a declared public health emergency;
  • Protection against retaliation for use of earned sick leave.

IV. Sick Leave Laws Applicable to New York Employers:

In light of the new federal and state legislation, and other applicable sick leave laws already in place, employers in New York must provide the following benefits for employees unable to work due to the COVID-19 crisis.

LEAVE LAWS EMPLOYERS AFFECTED APPLICABILTY PAID SICK LEAVE REQUIRED UNPAID SICK LEAVE AVAILABLE
NY EMERGENCY SICK LEAVE All employers For employees subject to a mandatory or precautionary order of quarantine or isolation

*  Unless employee ignored travel ban

Applies immediately regardless of length of employment

 

Employers with 100 or more employees

·  14 days paid sick leave

 

Public employers

·  14 days paid sick leave

 

Employers of 11-99 employees

·   5 days paid sick leave

·   thereafter, employees can use paid family leave and disability benefits

 

Employers of 10 or less employees (and net income over $1 million)

·   5 days paid sick leave

thereafter, employees can use paid family leave and disability benefits

Unpaid sick leave for remaining duration of quarantine or isolation
NY EMERGENCY PAID FAMILY LEAVE All employers For employees subject to a mandatory or precautionary order of quarantine or isolation; or

To provide care for a minor dependent child subject to a mandatory or precautionary order of quarantine or isolation

Capped at $840.70 per week

Benefits may be payable concurrently with paid disability leave

NY EMERGENCY DISABILITY BENEFITS All employers For inability to work as a result of a mandatory or precautionary order of quarantine or isolation

*  Unless employee is asymptomatic and able to work

Applies immediately regardless of length of employment

Capped at $2,043.92 per week

Benefits may be payable concurrently with paid family leave

FFCRA –

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

Employers with fewer than 500 employees

* Employers with fewer than 50 employees may get exemption

* Employers of health care workers may opt out

* Employers of emergency responders may opt out

Only to care for child due to school closure

Applies to employees working 30 days prior to impact from Coronavirus

 

Yes, after first 10 days of leave

Paid at 2/3 regular rate

Capped at $200 per day or $10,000 total

Yes, during first 10 days of leave

Employee may substitute accrued paid leave during this time.

 

 

FFCRA-

EMERGENCY PAID SICK LEAVE ACT

Employers with fewer than 500 employees

* Employers with fewer than 50 employees may get exemption

* Employers of health care workers may opt out

* Employers of emergency responders may opt out

 

For employee under order of quarantine or isolation; or

For employee under advice of self-quarantine; or

For employee seeking medical diagnosis; or

To care for someone subject to order of quarantine or isolation; or

To care for child due to school closure; or

For employee experiencing other symptoms

Applies immediately regardless of length of employment

Yes, FT employees entitled to 80 hrs sick leave

Yes, PT employees entitled to average number of hours worked over a 2-wk period

Paid at regular rate for employee’s own quarantine, isolation, self-quarantine or to seek medical diagnosis.

·   Capped at $511 per day or $5,110 total

 

Paid at 2/3 regular rate to care for others

·   Capped at $200 per day or $2,000 total

FMLA Private employers with 50 or more employees

All public employers

For serious health condition of employee

For serious health condition of employee’s family member

Eligible after 1,250 hours worked during 12-month period

No Provides 12 weeks unpaid leave in 12-month period

Provides 26 weeks unpaid leave in 12-month period to care for service member

Employer can require employee to concurrently use accrued paid vacation, sick time or family leave

NY PFL All private employers

Public employers may opt-in

To care for family member with serious health condition only

Eligible after 26 weeks of regular employment

Provides up to 10 weeks of paid leave per year

·  Up to 60% of benefits

Employer cannot require employee to concurrently use paid time off

 

NY ESSTA All Employers For treatment of employee’s own health condition

For care or treatment of family member

For closure of employee’s workplace due to public health emergency

To care for a child whose school closed as a result of a public health emergency

Eligible after 120 days of employment

For employers with 5 or more employees

·   Up to 40 hours paid sick leave per year

 

 

For employers with 1 to 4 employees

·   Up to 40 hours unpaid sick leave per year

 

 

WESTCHESTER COUNTY ESLL All employers For treatment of employee’s own health condition

For care or treatment of family member

For closure of employee’s workplace due to public health emergency

To care for a child whose school closed as a result of a public health emergency

Eligible after 90 days of employment

For employers with 5 or more employees

·   Up to 40 hours paid sick leave per year

 

For employers with 1 to 4 employees

·   Up to 40 hours unpaid sick leave per year

 

Takeaway for Employers:

Employers should review all applicable leave policies to ensure coordination with the New York emergency paid leave law which takes effect immediately, and the Families First Coronavirus Response Act which takes effect within fifteen (15) days of its enactment.

 

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

Putney, Twombly, Hall & Hirson LLP

In response to the COVID-19 pandemic, the United States Department of Labor (“DOL”) has issued updated guidance addressing common workplace issues arising under the Occupational Safety and Health Act, the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”).  While none of the guidance constitute changes to governing law, the DOL seeks to reinforce existing laws and aid employers in making sound employment related decisions in light of the crisis.

OSHA Guidance:

On March 9, 2020, the Occupational Safety and Health Administration (“OSHA”) issued guidance on preventing worker exposure and preparing the workplace for COVID-19. https://www.osha.gov/Publications/OSHA3990.pdf. In its guidance, OSHA highlighted various steps employers may take to reduce the risk of worker exposure to COVID-19 and developing infectious disease preparedness and response plans.  In creating such plans, OSHA recommends, among other things, that employers:

  • Identify potential sources of exposure to workers (e.g. exposure to the general public, customers and sick coworkers)
  • Prepare to implement preventative measures to limit potential exposure (g. discourage workers from sharing desks, phones and common workspaces)
  • Implement enhanced sterilization and cleaning procedures (e.g. cleaning surfaces with disinfectants)
  • Develop policies and procedures to promptly identify and isolate employees who have been exposed to COVID-19
  • Develop and implement flexible work schedules and telecommuting policies to reduce interaction between employees

For those employers requiring the use of respirators in the workplace, on March 14, 2020, OSHA issued new temporary guidance regarding the enforcement of its Respiratory Protection Standard.  This guidance provides discretion to Compliance Safety and Health Officers and is aimed at ensuring healthcare workers have full access to needed N95 respiratory protection in light of anticipated shortages. https://www.osha.gov/memos/2020-03-14/temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit.

OSHA recommends employers follow existing CDC guidelines, including taking measures to conserve supplies of these respirators while safeguarding health care professionals (“HCP”).   One such measure is that healthcare employers may provide HCP with another respirator of equal or higher protection, such as N99 or N100 filtering facepieces, reusable elastomeric respirators with appropriate filters or cartridges, or powered air purifying respirators (“PAPR”).  Another measure is that healthcare employers may change the method of fit testing from a destructive method (i.e., quantitative) to a non-destructive method (i.e., qualitative).  For filtering facepiece respirators, qualitative and quantitative fit-testing methods are both effective at determining whether the respirator fits properly.  See 29 CFR § 1910.134, Appendix A, Fit Testing Procedures.  The fitted respirator can then be safely used for work tasks that on respiratory protection.  For additional guidance, see Strategies for Optimizing the Supply of N95 Respirators.

DOL Guidance on the FLSA:

The DOL’s Wage and Hour Division also issued guidance, in the form of Questions & Answers on common issues that employers may face under the FLSA in connection with responding to COVID-19.  The FLSA Questions and Answers provide guidance on the following topics:

  • Pay to non-exempt employees during business closures
  • Pay to exempt, salaried employees including requiring such employees to use vacation or leave without pay during business closures
  • Restrictions on employees able to work including:
    • Hours/Days an employee can work
    • Expansion of job duties
    • Use of Volunteers
    • Use of Temporary employees
  • Requiring or encouraging employees to telecommute, including:
    • Reimbursement for expenses
    • Telework or Home office requirements/inspection

The DOL’s full Questions and Answers guidance for FLSA may be located at https://www.dol.gov/agencies/whd/flsa/pandemic. While the guidance addresses current federal law, it is noted that employers should determine whether any additional obligations are imposed under state or local laws or applicable collective bargaining agreements.

DOL Guidance on the FMLA:

The DOL also issued Questions and Answers guidance to assist employers with compliance with the FMLA for absences related to COVID-19.  The guidance addressed the following topics:

  • Employees affected by COVID-19 may be entitled to FMLA leave to care for themselves or an infected family member
  • FMLA need not be provided to employees absent from work to avoid exposure
  • FMLA need not be provided to employees absent to care for healthy children dismissed from school
  • Current federal law does not provide for paid leave
  • Employers may send employees home if they show symptoms of COVID-19 in compliance with laws prohibiting discrimination and after determining that no reasonable accommodation exists to safely maintain the employee at the workplace
  • Employees may be required to provide clearance to return to work after recovering from COVID-19
  • Employers may modify paid leave policies in nondiscriminatory manners and in compliance with state and local laws
  • Employers may layoff employees due to temporary closures in compliance with discrimination laws and the Worker Adjustment and Retraining Notification (“WARN”) Act

The DOL’s full Questions and Answers guidance for FMLA may be located at https://www.dol.gov/agencies/whd/fmla/pandemic.  While the guidance addresses current federal law, it is noted that employers should determine whether any additional obligations are imposed under state or local laws or applicable collective bargaining agreements.

Takeaway for Employers:

While the DOL guidance do not modify any existing laws, employers may find them helpful for compliance during the COVID-19 pandemic.

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

Putney, Twombly, Hall & Hirson LLP

Since our last alert on the Coronavirus Disease 2019 (“COVID-19” or “Coronavirus”), dated March 2, 2020, the number of cases of Coronavirus has increased significantly, as has the number of affected countries. On March 11, 2020, the World Health Organization (“WHO”) characterized COVID-19 as a pandemic.

In the United States, the federal government is working with state and local partners, as well as health departments to respond to the potential widespread transmission of COVID-19 in the United States. The Center for Disease Control and Prevention (“CDC”) has implemented its pandemic preparedness and response plans, including providing specific guidance measures to prepare communities to respond to local spread of the Coronavirus. While the CDC continues to provide support and guidance, the federal government is encouraging state and local health departments to assist in managing the testing and response to COVID-19. As of March 8, 2020, state and local public health labs in all 50 states have kits to test for the Coronavirus.

New York State Response:

The New York State Department of Health (“NYSDOH”) has been closely monitoring the situation, and New York State has responded to a significant increase in the Coronavirus in the state. On March 7, 2020, there were a total of 76 confirmed cases of the Coronavirus in New York State. As of March 11, 2020, there were a total of 216 confirmed cases statewide, with 121 in Westchester County and 52 in New York City.

On March 7, 2020, New York Governor Andrew Cuomo declared a state of emergency to help New York more quickly and effectively contain the spread of the virus. Among other things, the declaration will allow:

  • expedited procurement of cleaning supplies, hand sanitizer and other essential resources;
  • allowing qualified professionals other than doctors and nurses to conduct testing;
  • expedited procurement of testing supplies and equipment;
  • expedited personnel onboarding;
  • expedited leasing of lab space;
  • allowing EMS personnel to transport patients to quarantine locations other than just hospitals

On March 10, 2020, Governor Cuomo implemented an emergency measure to contain the Coronavirus “cluster” in New Rochelle for a two-week period, by closing schools, houses of worship and other large gatherings within a one-mile radius in New Rochelle. In addition, National Guard troops have been deployed to a Health Department command post in New Rochelle to assist with the outbreak in that community. Employers should consider how this order may impact the use of sick time under earned sick time laws. The New York City Earned Safe and Sick Time Act and the Westchester County Earned Sick Leave Law, both allow for paid time off due to office or school closures during public health emergencies.

In addition, New York State and New York City have prepared interim containment guidelines for home self-monitoring from possible exposure to the Coronavirus.

New York State Guidance on Monitoring:

The NYS Guidance provides directives for isolation or quarantine based on the status of the individual. The NYSDOH uses the following definition to determine whether to institute mandatory or precautionary quarantine:

  • Mandatory Isolation – required for persons who have tested positive for the Coronavirus, whether or not displaying symptoms.
  • Mandatory Quarantine – required for persons who:
  1. have been in close contact (6 feet) with someone who has tested positive for the Coronavirus, but is not displaying symptoms, or
  2. have traveled to China, Iran, Japan, South Korea or Italy, and is displaying symptoms of the Coronavirus.
  • Precautionary Quarantine – for persons who meet one or more of the following criteria:
  1. has traveled to China, Iran, Japan, South Korea or Italy while the Coronavirus was prevalent, but is not displaying symptoms;
  2. is known to have had exposure to a positive person, but has not had direct contact with a positive person, and is not displaying symptoms.

The NYS Guidance provides that persons who are isolated or quarantined must be treated with compassion and respect, and Local Health Departments (“LHD”) must help these individuals to meet their housing, social, medical, mental health and economic needs. The NYSDOL recommends that LHDs issue orders to implement mandatory isolation or quarantine, while written agreements should be used for precautionary quarantine in order to increase compliance. Under the NYS Guidance, LHDs must immediately issue an order for mandatory isolation or quarantine once notified.

Prior to the implementation of mandatory isolation or quarantine, LHDs must assess whether the person’s home is safe to allow the person to remain and avoid transmission to others in the household. If the home is not safe to avoid transmission, the LHD must identify a safe place for the exposed person and/or their household members to live during the monitoring period. During mandatory isolation or quarantine, LHDs must perform at least one in person visit per day, and establish electronic communication as least once per day that establishes presence in the residence. The LHD must also create an action plan for what to do if the isolated person becomes ill.

For a precautionary quarantine, the person must have separate quarters with separate bathroom facilities, and a way to self-quarantine from household members as soon as a fever or other symptoms develop. There are no required in-person visits by LHDs. However, there must be electronic communications at least once a day utilizing a mechanism to get a status and health update, and to provide advice.

The NYS Guidance cautions that “No person subject to an order shall have an adverse employment impact.” Moreover, no LHD or political subdivision in the state may release any information related to a person who is subject to an isolation or quarantine order, and any requests for information must strictly adhere to HIPAA and related privacy laws.

New York City Guidance on Self-Monitoring:

The NYC Guidance is written in a question and answer format, and provides information concerning self-monitoring for people who return from countries designated by the CGC, and their return to work or school.

The NYC Guidance provides that anyone returning from an area designated by the CDC, within the last 14 days, will be screened at the airport for COVID-19 symptoms and risk factors for the virus. After the screening:

  • Travelers arriving in NYC, who have no symptoms, will be transported to a quarantine location in NYC, as directed by the CDC.
  • Most travelers who have no symptoms will be given information about home self-monitoring, and can continue to their destination. Their local health department will be in contact with them to provide more information.
  • Others with possible exposure to the virus may be asked to home self-monitor by the NYC Health Department.

For those who are asked to self-monitor, they should take the following measures:

  • take their temperature twice a day;
  • check for symptoms, such as cough or shortness of breath;
  • stay at home and remain out of public areas. Do not go to work or school. However, members of the household that were not in one of the CDC-designated countries may continue to go to work or school;
  • continue this for 14 days since leaving the CDC designated country;
  • if a fever or symptoms appear during self-monitoring, avoid close contact with others (6 feet) and call the NYC Health Department at 347-396-7990 for further instructions;
  • if a medical problem develops during self-monitoring for which they need to see a doctor or health care provider, call the provider ahead of the visit and let them know about recent travel;
  • if a medical emergency develops during self-monitoring, call 911 and advise the operator about recent travel;
  • although it is normal to feel sad, anxious or overwhelmed, if symptoms become worse, reach out for support by calling NYC Well at 888-NYC-WELL

The NYC Guidance further provides that after the 14-day self-monitoring period, if no fever or symptoms appear, the person can return to work or school. No formal clearance process is necessary. Moreover, “[t]here is no medical reason for your work or school to exclude you after the home self-monitoring period is over,” and a report can be made to the NYC Commission on Human Rights, by calling 311 and saying “human rights.” To the extent requested, doctor’s notes are available on the NYC Health Department’s website at nyc.gov/health/coronavirus.

New York State Guidance on Testing:

Finally, until New York reaches full testing capacity, the NYSDOH has issued a guidance for authorization for COVID-19 testing in order to ensure that resources are being distributed efficiently. Testing shall be authorized by a health care provider when:

  • an individual has come in proximate contact (i.e., same office, classroom or gathering) with another person known to be positive for the Coronavirus;
  • an individual has traveled to a country that CDC has issued a Level 2 or 3 Travel Health Notice, and shows symptoms of illness; or
  • an individual is quarantined (mandatory or precautionary), and has shown symptoms of the Coronavirus; or
  • an individual is symptomatic and has not tested positive for any other infection; or
  • other cases where the facts or circumstances warrant testing as determined by a treating clinician in consultation with state and local health department officials.

Takeaway for Employers:

Employers should continue to monitor guidance from the CDC, the NYSDOH, and state and local government agencies for further updates concerning responses to the Coronavirus, and consider how these guidelines impact their employment policies, including privacy, discrimination and earned sick leave 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

The Novel (new) Coronavirus disease 2019 (“COVID-19” or “Coronavirus”) is a rapidly spreading respiratory illness that started in Wuhan, China, but has spread to a growing number of locations internationally, including the United States. It is raising important issues for employers, as employers must balance their obligation to maintain a safe and healthful workplace with an employee’s right to be free from discrimination. While this alert addresses the legal framework pertaining to Coronavirus risks in the workplace, the information from public health officials is changing rapidly as the disease spreads, so employers should continue to monitor guidance provided by agencies charged with guiding the public, such as the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies.

Government Response

On January 31, 2020, U.S. Department of Health and Human (“HHS”) declared a public health emergency for the United States to aid the nation’s healthcare community in responding to the Coronavirus.  Because of this declaration, the U.S. government has taken the following unprecedented steps with respect to travel:

  • Suspended entry of foreign nationals who have been in China within the past 14 days.
  • Suspended entry of foreign nationals who have been in Iran with in the past 14 days.
  • U.S. citizens, residents and their immediate family members who have been in Hubei province and other parts of China can enter the United States, but they are subject to health monitoring and possible quarantine for up to 14 days.

The CDC has issued a Level 3 travel warning for China, Iran, Italy and South Korea, and is recommending that individuals avoid all nonessential travel to these countries. Further, the CDC has issued a Level 2 alert – Practice Enhanced Precautions – for Japan, and a Level 1 watch – Practice Usual Precautions – for travel to Hong Kong. As of this time, however, cases have been identified on all continents except Antarctica.

The CDC has indicated that the fact this disease has caused illness, death and sustained person-to-person spread is concerning, and the preliminary information raises the level of concern about the immediate threat for the Coronavirus for certain communities in the United States. The CDC’s current risk assessment is that the “potential public health threat posed by COVID-19 is very high, to the United States and globally.”  However, most people in the United States, will have “little immediate risk or exposure” to this virus, as follows:

  • For the general public, who are unlikely to be exposed to this virus, the immediate health risk is considered low.
  • For people in communities where ongoing spread of the Coronavirus has been reported, they are at elevated though still relatively low risk of exposure.
  • Healthcare workers caring for patients with Coronavirus are at elevated risk of exposure.
  • Those in close contact with persons with Coronavirus are also at elevated risk of exposure.
  • Travelers returning from affected international locations where community spread is occurring also are at elevated risk of exposure.

Some states and municipalities have also issued guidance addressing the Coronavirus, but New York has not.  As of March 2, 2020, there is one confirmed case of Coronavirus in New York City

CDC Interim Guidance for Businesses and Employers

The CDC published an Interim Guidance for Businesses and Employers, to help prevent workplace exposure to the Coronavirus in non-healthcare settings, and to plan in the event of more widespread, community outbreaks.  However, the Interim Guidance cautions employers to use the guidance to determine the risk of Coronavirus, and not to make determinations of risk based on race or country of origin, and to maintain confidentiality of people with confirmed disease.  The Interim Guidance advises employers to:

  • Actively encourage sick employees to stay home.
    • Ensure sick leave policies are flexible and consistent with public health guidance and that employees are aware of the policies
    • Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
    • Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness, as healthcare providers may be extremely busy
    • Employers should maintain flexible policies that permit staying home to care for a sick family member.
  • Separate sick employees who appear to have acute respiratory symptoms and send them home immediately.
  • Emphasize staying home when sick, respiratory etiquette and hand hygiene of all employees
    • Place posters that encourage staying at home when sick, and that display cough and sneeze etiquette, and hand hygiene, where they are likely to be seen
    • Provide no-touch disposal receptacles for use by employees
    • Instruct employees to clean their hands often
    • Provide soap and hand sanitizer in the workplace
  • Perform routine evening cleaning. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
  • Advise employees before traveling to take certain steps
    • Check the CDC’s Traveler’s Health Notices for the latest guidance for each country
    • Advise employees to check themselves for symptoms of acute respiratory illness before starting travel
    • Notify their supervisor if they become sick while traveling and promptly call a healthcare provider
  • Additional measures in response to currently occurring sporadic importations of the Coronavirus. 
    • Employees who are well but have sick family members at home with Coronavirus should notify their supervisor and refer to the CDC guidance for how to conduct a risk assessment of their potential exposure.
    • If an employee is confirmed to have the Coronavirus, employers should inform fellow employees of their possible exposure in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act.
    • Employees exposed to a co-worker with confirmed Coronavirus should refer to the CDC guidance for how to conduct a risk assessment of their potential exposure.

CDC Information for Healthcare Professionals

The CDC has also published multiple guidance information for health care professionals, including interim guidance for the following:

Creating an Infectious Disease Outbreak Plan

The CDC also encourages employers to plan to be able to respond to a possible Coronavirus outbreak in the United States.  The CDC recommends the following guidelines for creating an infectious disease outbreak plan:

  • Identify possible work-related exposure and health risks to employees (including reviewing materials from the Occupational Safety and Health Administration (“OSHA”)).
  • Coordinate policies to make sure they are consistent with existing state and federal workplace laws, including with leaves, accommodations, and flexible working arrangements.
  • Establish flexible working arrangements, including telecommuting, and staggered shifts to increase the physical distance among employees if state and local health authorities recommend the use of social distancing strategies.  For employees who can telework, consider IT needs to support a remote workforce while maintaining data security, especially for Health Insurance Portability and Accountability Act (“HIPAA”)-covered entities.
  • Identify essential business functions, essential jobs or roles, and critical elements within a company’s supply chains required to maintain business operations and plan for interruptions.
  • Set up authorities, triggers and procedures for activating and terminating the company’s infectious disease outbreak response plan, altering business operations, and transferring business knowledge to key employees.
  • Plan to minimize exposure between employees.
  • Establish a process to communicate information to employees and business partners on your outbreak response plan.
  • Plan for school closures.
  • If there is an outbreak, consider canceling non-essential business travel per the CDC’s travel guidance.
  • Coordinate with state and local health departments


Considerations for Employers

ADA and FMLA Protections

Under the Americans with Disabilities Act (“ADA”), as amended by the ADA Amendments Act, an employee with Coronavirus could fall within the definition of a “qualified individual with a disability” and be protected by the ADA, as well as state and local disability laws.  Moreover, individual exposed to Coronavirus, or thought to be exposed (such as those who travelled to high risk areas), may be able “regarded as” having the illness.

Similarly, an employee diagnosed with Coronavirus would likely constitute a serious health condition under the Family and Medical Leave Act (“FMLA”) and eligible for FMLA leave.

Testing

Under the ADA, an employer cannot make medical inquiries of employees unless it is voluntary or job-related and consistent with business necessity. If an employer makes such inquiries, it must follow the ADA guidelines pertaining to medical records, which require that they be maintained as confidential and kept separate and apart from the employee’s personnel file.  The employer must also limit the distribution of such information to individuals with a legitimate need to know.

Nonetheless, if an employee poses a direct threat to the health or safety of himself/herself or to others, then an employer can require the employee to disclose health information. A positive test for the Coronavirus would likely fall within this category. Similarly, an employee who may have been exposed to the Coronavirus and demonstrates symptoms, may also fall within this category. If the employee is represented by a union and covered by a collective bargaining agreement, the employer may have an obligation to notify the bargaining representatives and to meet, confer, and possibly negotiate before implementing mandatory testing.

The CDC’s test to determine whether an individual has contracted Coronavirus is, at this time, only available at a laboratory that the CDC has designated as qualified but will soon share the tests around the country. It is unclear whether testing will be made available to most health care practitioners.  New York has asked the CDC for authorization to test in-state, rather than requiring samples to be sent to the CDC’s headquarters. New York is also creating its own test for COVID-19.

It is not clear whether employees who are concerned about exposure to COVID-19 may seek a test for Coronavirus from their own health care provider. Thus, if any employee raises a concern about exposure to Coronavirus and potential symptoms, employers should encourage the employee to seek emergency assistance and contact their state/local health department(s).

Travel and Quarantine (Mandatory or Self-Imposed)

As noted above, the CDC has advised avoiding all nonessential travel to China, South Korea, Iran and Italy, and has warned against travel to Japan. The United States has imposed mandatory quarantines for over 300 individuals at military bases in California, Colorado, Nebraska, and Texas. Based on HHS guidance, many employers are also requiring a 14-day self-quarantine – restricting employees who have returned from certain countries with a higher risk of COVID-19 from coming into the office.

During a self-imposed quarantine, employers may permit employees to work remotely, if their job duties permit. For employees who cannot work from home, employers may want to consider whether to apply paid time off under vacation, sick, and/or other time off policies and applicable law, or to provide pay to quarantined employees separate and apart from the employee’s accrued time off. Employers must also consider applicable collective bargaining agreements in the case of union-represented workers.

Employers should consider whether travel to large conferences or events is essential at this time and may wish to make attendance optional, especially if it is likely that attendees will have traveled from areas impacted by COVID‑19. With regard to making attendance optional, employers should make clear that employees need not provide any explanation for their decision not to attend, in order to maintain confidentiality of protected characteristics, such as the employee’s health (e.g., compromised immune system, pregnancy, etc.) or caregiver status (e.g., elderly relatives in the home).

Packages

The World Health Organization (“WHO”) has issued guidance confirming that it is safe to receive packages from China and other places where the Coronavirus has been identified.

Places of Public Accommodation

Title III of the ADA requires places of public accommodation to afford the full range of their services and activities to individuals with disabilities.  If an employer’s place of business is open to the public, and thus some or all of its workplace is considered a place of public accommodation, the employer should be cautious when refusing service to certain groups of individuals.  Employers should ensure that customers are not refused service or singled out based on their ethnicity or national origin.

Communications with Employees

Many employers are sending communications to employees with general information about the Coronavirus, including the symptoms. Additionally, some employers have advised their employees that if they are concerned that they may have been exposed to the Coronavirus, or if they have recently traveled to certain countries with a higher risk of COVID-19, they should not come into work and should contact the local health department or the CDC. As noted above, the U.S. government is recommending that anyone returning from China engage in a 14-day self-imposed quarantine.

Discrimination

If an employer has a reasonable belief that an employee may have the Coronavirus, then the employer may send that person home to protect the rest of the workforce. However, discrimination claims can arise if an employee is singled out based on some protected characteristic. Employers should be mindful to treat all employees with potential exposure the same, and not just those employees who may be of Chinese descent.

Visa Renewals

The U.S. suspension of entry of immigrants and non-immigrants who were physically in China, can impact U.S. employers, as can an employer’s reluctance to permit employees to go abroad for visa renewals and extensions of work authorizations. Employers should consider the possible problematic effects of the lack of work authorizations. If travel to an employee’s country of origin is not feasible, employers may suggest that employees seek extensions of non-immigrant status with U.S. Citizenship and Immigrations Services. When a timely application is made, this can secure continued work authorizations.

What Employers Should Do Now

  • Appoint a single individual as the point of contact within your company for questions about Coronavirus to ensure a coordinated and consistent response to all inquiries.
  • Provide employees with updated information about the symptoms of the Coronavirus.
  • Educate supervisors on the company’s planned preventative steps.
  • Review whether travel is necessary to high-risk areas.
  • Determine if additional obligations are imposed by HIPAA Privacy Rules.
  • Assure that your policies and practices meet OSHA and CDC standards, especially for health care employees when blood-borne pathogens may be present.
  • Consider whether any issues need to be addressed with the company’s collective bargaining unit and whether there are any provisions in the collective bargaining agreements may be affected.
  • Address requests from employees for leaves and accommodations and remind employees of leave and call-out policies.
  • Determine if telework is available for employees who will not be allowed in the office due to exposure or symptoms.  Otherwise, determine whether such employees will be paid for the leave or, can use other types of accrued paid leave.
  • Consider creating an infectious disease outbreak plan.

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

Putney, Twombly, Hall & Hirson LLP